Christian Grierson and Simon Kiely examine the impact of a High Court judge’s ruling on whether a breach of the public sector equality duty (PSED) can be cured in possession proceedings.
In upholding a possession order made by Her Honour Judge Melissa Clark at Oxford County Court in May 2019, Mr Justice Zacaroli sitting in the High Court also confirmed that Slough Borough Council had not breached the PSED when deciding to take and continue possession proceedings against their tenant, despite the tenant’s disability.
The case of Slough Borough Council v Taylor  EWHC 3520 (Ch) considered how a public authority must comply with the PSED when seeking a possession order. The judgment also provides further guidance for public sector landlords and confirms that an initial breach of the PSED can be cured by subsequent compliance with the duty.
Section 149 of the Equality Act 2010 provides that a public authority must act in accordance with the PSED. This requires that in the exercise of their functions they must have due regard to eliminating discrimination, advancing equality of opportunity and fostering good relations between different people when carrying out their activities.
Ms Taylor was granted an introductory tenancy for a home (the “Property”) in 2009 which became a secure tenancy in 2010. The council became aware that Ms Taylor had bipolar disorder from 2012. Ms Taylor also has a history of drug and alcohol misuse.
Whilst Ms Taylor resided at the Property a vast number of allegations of anti-social behaviour were made against her, largely relating to the sale and consumption of drugs at the Property. These allegations culminated in a Closure Order being made against the Property on 2 January 2018. On the same day the council served a notice seeking possession on Ms Taylor based on ASB and the making of the Closure Order, relying on the absolute ground of possession under s.84A of the Housing Act 1985.
Prior to commencing proceedings against Ms Taylor, the council conducted an Equality Act impact assessment in accordance with the PSED. However, it was incorrect as it failed to consider that Ms Taylor had a disability, as at the time the officers conducting the assessment were unaware of Ms Taylor’s diagnosis of bipolar disorder. However, once the officers at the council became aware of the diagnosis in June 2018 they treated Ms Taylor has having a protected characteristic and gave due regard to the PSED in making further case management decisions thereafter.
At trial, HHJ Clarke gave judgment in favour of the council and made a possession order after finding both that the possession proceedings were a proportionate means of achieving a legitimate aim, and that whilst there was an was initial breach of the PSED by the council in failing to consider Ms Taylor’s disability when issuing possession proceedings, the council through its subsequent compliance with the PSED duty had ‘cured’ the breach.
Ms Taylor’s appeal against the possession order proceeded on the single ground of whether HHJ Clarke was wrong to find that there ultimately had been no breach of the PSED by the council. Mr Justice Zacaroli, in upholding the previous order, considered again whether there had been a breach of the PSED such that the possession order should not have been made.
Breach of PSED
It was submitted by the Appellant that the ‘exercise of its functions’ required by PSED, referred to the council’s housing function and this had been breached because the council had not taken account of Ms Taylor’s disabilities at the time that it commenced proceedings. It was found in the County Court that the council had ultimately complied with the PSED. The council was initially in breach of the PSED by failing to consider Ms Taylor’s disability when issuing possession proceedings, but the council had subsequently complied with the PSED duty and through its compliance had cured the breach. The question of whether a breach could be cured by subsequent action was examined in detail.
Cure of the initial breach of the PSED
The Appellant submitted that subsequent conduct cannot cure a breach of the PSED, and that the Council had not cured the breach in any event. Zacaroli J categorically rejected the submission that a breach of the PSED cannot be cured by subsequent compliance with the duty . In his judgment he referred to three cases where subsequent compliance had been specifically approved by the Court of Appeal . In the cases of Barnsley , Powell  and Forward  there is clear judicial support that it is open to a social housing landlord to cure a breach in compliance with the PSED at a later stage. Zacaroli J also found that the submission made by the Appellant that there had not been subsequent compliance did not come close to meeting the high threshold to overturn a trial judge’s primary findings of fact in this regard .
Further clear guidance has been provided that in the context of possession proceedings that an initial breach of the PSED can be cured by subsequent compliance with the duty. Whilst public authorities should of course be very careful to properly observe the PSED in the first instance, they should also be aware that they may be able to remedy the issue subsequently if required.
The judgment collates relevant case law on PSED in possession proceedings and serves as a reminder on best practice for social housing landlords when complying with the PSED. The following overarching factors should always be considered:
- Nature and scope: Public authorities are under a duty to have due regard to the need to achieve the results identified in Section 149 and this will involve weighing the relevant the facts involved.
- Making enquiries: Whilst not applicable in every case, where features of the PSED are evident there might be a duty to make further enquiries from, for example, the police, social services and other support agencies.
- Substance over form: Public authorities should not treat compliance with the PSED as a tick box exercise.
- Continuing nature: There is no point where the duty is extinguished, and public authorities must continually comply with it.
- Timing: Consideration of the PSED must be made before deciding to issue possession proceedings.
- Recording: Public authorities must carefully record their actions to comply with PSED.
 Para  of the judgment
 Paras  –  of the judgment
 Barnsley Metropolitan Borough Council v Norton  EWCA Civ 384
 Powell v Dacorum Borough Council  HLR 21
 Aldwyck Housing Group Ltd v Forward  1 WLR 584
 Para  of the judgment
Simon acted for Slough Borough Council in this case and instructed Ruchi Parekh of Cornerstone Barristers. Sharpe Pritchard has a number of experienced Housing Litigators who are available to answer any queries local housing authorities may have arising from this Judgment. Please contact Simon Kiely if you wish to discuss the implications of this case in more detail.