Possession claims and breaches of the PSED
A breach of the public sector equality duty recently proved not to be fatal to a claim for possession. Nicholas Grundy QC and Donna McCarthy explain how a Court of Appeal judgment leaves PSED defences in such cases, and give their top 10 tips for ensuring compliance with the duty.
Luton Community Housing Limited v Durdana [2020] EWCA Civ 445
The Test: High likelihood that if the decision maker had complied with PSED they would have come to the same decision.
By a decision, dated 25 March 2020, the Court of Appeal has allowed Luton Community Housing's (LCH’s) appeal from HHJ Bloom’s dismissal of its possession claim against Ms Durdana. HHJ Bloom had dismissed LCH’s claim because she found (and it was conceded) that LCH had not carried out an assessment of the impact of eviction on Ms Durdana and her family that complied with the Public Sector Equality Duty (“the PSED”), set out in the Equality Act 2010 (“EA”), s. 149. Ms Durdana’s daughter has cerebral palsy and Ms Durdana has PTSD as a result of the trauma associated with the birth of her daughter.
This article provides an analysis of the Court of Appeal’s decision in this case and where it leaves PSED defences in residential possession cases in particular and PSED in general.
The Claim and the Trial Judgment
The premises were let to Ms Durdana under an Assured Shorthold Tenancy, to which the Housing Act 1988 (“HA 88”) applies. The claim for possession was brought under Ground 17; that is that the tenant induced the landlord to grant the tenancy by a false statement made knowingly or recklessly. In this case the false statements concerned the income of Ms Durdana and her husband, their savings and the accommodation that they were living in at the time of LCH’s grant of the tenancy. Ground 17 is a ‘Reasonableness Ground’ for possession; i.e. where the court finds that the ground is made out it may, nonetheless decline to make a possession order, or may make a conditional order, if it would not be reasonable to do so in all the circumstances: see HA 88, ss. 7(4).
LCH’s policy was to always pursue possession where a tenancy had been obtained by fraud.
HHJ Bloom found that the ground was made out; i.e. that but for the false statements LCH would not have granted Ms Durdana the tenancy.
There was before the court a two-page ‘Equality Act Review’; however, that document posed the questions that would arise on a proportionality assessment for the purposes of justification of Disability Discrimination under the EA, s. 15; i.e.: Whether the defendant was being subjected to ‘unfavourable treatment’; whether LCH was pursuing a legitimate aim and whether the unfavourable treatment was connected to the legitimate aim. In this case, of course, it could not be said that the possession claim related to the disability of Ms Durdana or her daughter. It is apparent from HHJ Bloom’s judgment that if there was a Disability Discrimination defence it was not pursued at Trial.
HHJ Bloom found that in deciding to issue and pursue the possession claim LCH had not complied with the PSED. Indeed, the LCH’s officer’s evidence was that she was totally unaware of the PSED and that she had not had any training on the PSED.
LCH invited HHJ Bloom to factor its failure to comply with the PSED in the consideration of reasonableness. HHJ Bloom declined to do so; she held that the breach of the PSED in this case was such that she did not get as far as the consideration of reasonableness and she dismissed LCH’s claim; see Trial Judgment [58].
Recognising that a PSED defence is a public law defence and that if the outcome of the decision-making process would have been the same even if the PSED had been complied with, HHJ Bloom considered whether she could be sure that the outcome of the case would ‘inevitably be the same if the PSED had been … complied with’ [54]. She found that she could not be so sure.
HHJ Bloom was sufficiently concerned that her approach in this regard was wrong that she gave LCH permission to appeal and for the appeal to ‘leap-frog’ to the Court of Appeal.
The Court of Appeal Decision
The Court of Appeal allowed LCH’s appeal because it found that HHJ Bloom had applied the wrong test (so erred in law) in considering the likelihood of the outcome had the PSED been complied with.
The Court of Appeal held that the proper test is: “Whether, on the facts it is highly likely that a proper PSED assessment would not have led to a different decision?” [33]. That question being asked of the decision maker and not of the court; i.e. in this case if LCH had complied with the PSED is it highly likely, as opposed to inevitable, that it would nonetheless have pursued the possession claim?
The Court of Appeal then considered the extent of the disabilities of Ms Durdana and her daughter and the shortage of social housing: see [34], [35] and [36]. The court noted that HHJ Bloom had found that if a PSED assessment had been carried out by LCH it was ‘highly likely that [Ms Durdana] will lose [the premises]’.
Allowing the appeal, the Court found that [36]:
“Even after paying due regard to these disabilities LCH could lawfully have decided to continue with the claim for possession and are highly likely to have done so.”
However, the Court held that it could not be sure what the outcome of the consideration of reasonableness, for the purposes of ss. 7(4) would be and remitted the case back to the County Court.
Discussion
The PSED is a growth area for litigation. The decision in this case reveals again the difficulty the courts have in identifying core principles for the application of the PSED. This problem was identified by Lord Philip Sales (as he now is) in a lecture he gave to the Employment Law Bar and Administrative Law Bar Associations on 13 December 2010 (i.e. before the PSED came into force on 5 April 2011):
The very abstract formulation of the duty, which is to ‘have due regard’ to certain matters, should also be noted. What is ‘due regard’? The statute does not give us much information about that, other than again in very general terms in section 149(3). The practical effect of the combination of a very wide range of application for the duty across all public functions and a very abstract formulation of what has to be done means that the burden of spelling out the practical content of the duty devolves upon the courts.
So, how does the Decision in Durdana help clarify matters?
(1) It confirms that compliance with the PSED requires a different and more wide-ranging consideration than justification of Disability Discrimination. Justification of Disability Discrimination requires the decision maker to conclude that the discrimination is ‘a proportionate means of achieving a legitimate aim’. In contrast the PSED does not require any decision about the merits of the proposed course of action.
(2) It supports the other cases that state that the extent of the PSED in a decision that impacts on an individual (or household) is of a different order of magnitude to macro decisions: see Powell v Dacorum BC [2019] EWCA Civ 23; Aldwyck HA v Forward [2019] EWCA Civ 1334 and L&Q HT v Patrick [2019] EWHC 1263 (QB).
(3) It confirms that breach of the PSED does not automatically entitle the person (or people) impacted by the breach to relief: e.g. R (West Berks DC) v SoS Communities and Local Government [2016] EWCA Civ 441 and Aldwyck HA v Forward supra.
(4) It establishes the test to be applied by the Court in assessing whether relief should be refused: Whether the decision is ‘highly likely’ to have been the same if the PSED had been complied with.
(5) It confirms that the subject for the purposes of that test is the body that was obliged to comply with the PSED and not the court.
(6) It illustrates that the court can itself decide that on the evidence the decision maker was highly likely to have come to the same decision if she/he/it had complied with the PSED. On the facts in this case the Court of Appeal gave weight to LCH’s policy of always pursuing possession in Ground 17 cases and the absence of medical evidence that the impact of eviction on Ms Durdana and her daughter would be acute [36].
(7) On the face of it the court can carry out the exercise in (6) without any additional evidence from the decision maker that she/he/it would have come to the same decision even after considering the PSED.
The problem remains, however, that what is required by the PSED is fact specific and accordingly, it is difficult to advise clients with any certainty what the approach of the particular judge or court is likely to be. This uncertainty will continue to lead to extended litigation.
It is the case that a decision maker can comply with the PSED after the decision has been made; although such post hoc compliance must be ‘in good faith’ (R (West Berks DC) v SoS CLG supra.). Given that what is ‘due regard’ is a matter for the decision maker, we would always advise a post hoc PSED assessment in preference to relying on a court finding that the decision would have been highly likely to have been the same even if PSED had been complied with.
PSED assessments
Insofar as PSED assessments are concerned, our advice is that these should not be formulaic; i.e. unlike proportionality assessments for the purposes of justification of Disability Discrimination it is not simply a matter of answering a series of questions. Rather, a more wide-ranging consideration is required. This does not mean that landlords need to tear up their templates but instead these should be used as a guidance document for decision makers. This guidance document should be part of a package for decision makers alongside training so that they understand the law and practical considerations that must be taken into account.
Broader practical considerations
Although this decision will give comfort to landlords who have not complied with the PSED it is important for landlords to strive for compliance wherever possible. Set out below are our 10 top tips for landlords to achieve compliance.
(1) Know your occupiers. Make sure that your sign up information is retained so that you can access it when a decision is required – this could draw attention to a disability that may not been brought to the decision maker’s attention by the occupier.
(2) Keep your enquiries open. It is good practice to make enquiries as to the occupiers’ health and/or give the occupier the opportunity to provide information that may affect the decision making.
(3) Keep good records. This covers all records of interactions between the landlord and the occupier which could demonstrate with clarity what information that the landlord had in respect of the occupier’s circumstances/disability and any steps taken to explore alternative options before the decision to take possession was reached. Further, make sure that all interactions with third party agencies such as social services are documented and retained as these will be vital for any decision makers to take into account when having due regard under the PSED as well as undertaking proportionality assessments.
(4) Be guided by expert opinion. If in doubt as to whether or not the occupier’s condition constitutes a disability, seek further information. If it is still not clear, conduct an assessment on the basis of available information, clearly indicating that there is insufficient information available as to whether the condition meets the definition of disability (Section 6 Equality Act 2010) but that an assessment has been conducted on the basis that it does.
(5) Ensure that decision makers have a good precedent framework to work from to give certainty that all relevant issues are considered when assessment is made. As stated earlier, avoid rigid templates as this should not be a tick box exercise.
(6) Record the decision. The Equality Act does not provide that a written record must be kept but it is vital to keep a written record to demonstrate the factors taken into account at the time the decision was made and that due regard was had to the PSED at the relevant time.
(7) Carry out an assessment at the earliest possible opportunity. It is good practice so ensure that an assessment is carried out before any notice is served. Otherwise at the earliest possible time thereafter.
(8) Make sure that the PSED is kept under review during the whole process. It is an ongoing obligation to have due regard, not a once and for all decision.
(9) A clear policy and guidance for decision makers is a must have. Make sure that officers know it and follow it.
(10) Training is key. Ensure that your decision makers and officers are trained in the requirements of PSED and also have a broader understanding of the provisions of the Equality Act.
Nicholas Grundy QC is a barrister at Five Paper and Donna McCarthy is a partner at Devonshires.
