Annette Cafferkey looks at the lessons to be learned from a High Court ruling in a case where a tenant claimed that a housing association had failed to comply with the public sector equality duty when pursuing possession.
In London and Quadrant Housing Trust v Patrick  EWHC 1263 the High Court dismissed an appeal in which the appellant, Mr Patrick, contended that it was wrong to make a possession order on mandatory grounds at a summary hearing against him as a disabled person in circumstances where the Trust had not complied with the Public Sector Equality Duty. The claim for possession was otherwise proportionate; a defence based on non-compliance with the PSED did not justify trial directions.
The Trust obtained an anti-social behaviour injunction against Mr Patrick, one of its tenants, which he shortly after breached. Upon hearing the committal application and being satisfied as to breach, the Circuit Judge sentenced Mr Patrick to four weeks custody, suspended for a year. On May 28, 2018 the Trust was granted permission to amend its claim for possession, which had previously been commenced on grounds of rent arrears only, to include a mandatory ground based on breach of the ASB injunction.
In response, on June 13, 2018 Mr Patrick filed and served an amended defence in which it was pleaded for the first time that he suffered from a mental impairment, the nature of which was not further particularised. He contended that the Trust had unlawfully discriminated against him under s.15 of the Equality Act 2010, and had failed to comply with the public sector equality duty (PSED) as set out in s.149 of that Act, in pursuing possession.
The claim was listed for hearing on June 28, 2018. Two days before, Mr Patrick served medical records which showed that he had been diagnosed with paranoid schizophrenia. The lateness of this disclosure occurred in circumstances where the Trust’s solicitors had sent two letters in April and May 2018, asking for Mr Patrick’s medical evidence in the light of his assertions that he was unable to provide contractors with access because of his mental health, but no information was then forthcoming.
The Judge was obliged to consider whether to decide the claim on a summary basis or whether to give case management directions for trial, a matter which had to be resolved by reference to CPR 55.8: was the claim genuinely disputed on grounds which appeared to be substantial. Despite the disclosure of medical records, the Judge found that there were no substantial grounds of defence and made a possession order, suspended for six weeks to take account of Mr Patrick’s disability.
In doing so, the Judge held that it was proportionate to make the possession order, and that even if there was a potential breach of the PSED, it did not prevent the Court from proceeding in a summary manner.
Mr Patrick was granted permission to appeal on the ground that the Judge had been wrong in law to reject the defence based on s.149.
In dismissing the appeal, the High Court held that it was only upon receipt of the medical evidence that the Trust could sensibly be expected to engage with the PSED, but that the engagement of that duty was not a trump card which mandated the giving of directions rather than summary disposal. To hold otherwise would run the risk of a litigant deliberately concealing a disability for tactical advantage, and would only serve to frustrate the purpose of the PSED. In addition, it was important to appreciate that the fulfilment of the duty does not involve any fixed hoops through which the public body must pass, regardless of the stage at which the duty is engaged.
Given the timing of the disclosure, the Trust could not be considered to be in breach of the PSED, and it was – in any event, and even if in breach – open to them to comply with that duty prior to the enforcement. The Trust had, in fact, carried out a formal proportionality and PSED assessment after the possession hearing which, contrary to submissions made by Mr Patrick’s counsel, could not be described as a “rear-guard action”.
Nor, even if there had been an extant breach, would that hinder possession where it could be said that it did not materially affect the outcome. To come to any other conclusion would present an anomaly between judicial review proceedings, where the High Court must decline relief if it appears to be highly unlikely that the outcome for the applicant would not be substantially different (s.31(2A) Senior Courts Act 1981), and private law claims defended on a public law basis.
The High Court, noting that much of significant case law on the PSED often concerned ministerial decisions on matters of policy, listed some factors that would, in many instances, be relevant to possession claims:
(i) When a public sector landlord is contemplating taking or enforcing possession proceedings in circumstances where a disabled person is liable to be affected, it is subject to the PSED.
(ii) The PSED is not a duty to achieve a result, but a duty to have due regard to the goals set out in s.149(1). The public sector landlord must weigh the PSED goals against countervailing factors, which factors may include, for example, the impact the disabled person’s behaviour is having on others.
(iii) The PSED is designed to secure a brighter illumination of a person’s disability so that, to the extent that it bears upon his rights under other laws, it attracts full appraisal.
(iv) A public sector landlord is not required in every case to take active steps to inquire into whether there is disability and whether it is relevant. If, however, there is some feature of the information before the decision maker which presents a real possibility that this might be the case then a duty to make further inquiries arises.
(v) The PSED is a matter of substance over form. It is not a tick-box exercise. Whilst it is helpful to record the steps taken in seeking to comply with the duty, nevertheless cases may arise when the conscientious decision maker, focussing on the impact of disability, may comply with the PSED even where he is unaware of its existence.
(vi) The duty is a continuing one and does not elapse after a possession order is granted and before it has been enforced. The PSED consequences of enforcing an order should be considered, ideally, before the order is sought; in the absence of any material change of circumstance, the continuing nature of the duty will not mandate further explicit reconsideration thereafter.
(vii) The duty to have due regard only takes on any substance if the landlord knew or ought reasonably to have known of the disability. The lateness of any such knowledge may impact on the discharge of the PSED. For example, a tenant whose anti-social conduct has already been adversely affecting his neighbours but whose disability is raised at the eleventh hour may find that the discharge of the PSED is less favourable to that person because the landlord’s options have been limited and the rights and reasonable expectations of others are more pressing.
(viii) If the Court is satisfied that the public sector landlord has carried out a sufficiently rigorous consideration of the PSED, it is not entitled to substitute its views as to the weight that should be attached to the competing factors.
The guidance in the Judgment makes it clear that compliance with the PSED is about balancing the factors relevant to promoting the goals identified in section149, with countervailing factors such as the impact the anti-social behaviour is having on others. Where the PSED is run in conjunction with s.15, by way of defence to a possession claim, it is difficult to see how the PSED adds anything of real substance to factors that arise under s.15. The High Court noted that in judicial review proceedings the Court could (in effect) ignore non-material illegality where the outcome would not have been materially different for the applicant, and commented that it could be thought anomalous if the same approach were not taken in private law claims defended public law grounds. The conclusion is surely correct; it results in the focus being on justification and proportionality (s.15(2)), rather than on the “elusively broad” duty to have due regard under s.149, the breach of which does not confer a cause of action, (s.156).