Too little too late: a successful PSED challenge to a possession order

The Court of Appeal recently considered the impact of the public sector equality duty (“PSED”) on a claim for possession of rented residential premises; in particular, whether an earlier breach of the PSED can latterly be remedied, and to what extent. Robert Winspear analyses the ruling.

What is the case of Metropolitan Housing Trust Limited v TM [2021] EWCA Civ 1890 about?

Metropolitan is a registered provider of social housing. It is the landlord of supported housing accommodation that TM occupied as an assured tenant. TM was a vulnerable individual (suffering from schizoaffective disorder and treatment-resistant paranoid schizophrenia). In 2018, TM exposed himself to a female resident and shortly afterwards seriously assaulted a carer.

Following those incidents, Mr Print (the relevant decision-maker for Metropolitan for PSED purposes) arranged a meeting with the Community Mental Health Team (“CMHT”). At the meeting, TM’s mental capacity was discussed, and Mr Print also discussed capacity with Dr Koch, TM’s psychiatrist, by email – but got no definitive answer on capacity. Mr Print reviewed an Equality Act Report, which said (among other things) that TM had a history of being inappropriate and aggressive towards staff and residents, and that interventions had no effect. Mr Print decided to issue possession proceedings, to safeguard staff and residents.

One of the grounds relied on by TM in resisting an order for possession was that Metropolitan had failed to comply with the PSED. Importantly, after proceedings were issued, Dr Koch did prepare a report concluding that TM lacked capacity. Metropolitan had a copy of this report by the time of the first hearing.

TM’s legal representatives argued that the PSED was a continuing duty, and that Mr Print should have reassessed his decision once he received the report. Mr Print was cross-examined, and said that in light of the report, if he had to make the decision again he would not have pursued possession proceedings; he would instead have tried an alternative way of dealing with the situation if that was at all possible. However, he also said he considered it remained a proportionate response to the two incidents to go through with the proceedings.

The trial judge accepted that the PSED is a continuing duty, and that Metropolitan should have reassessed the situation in light of Dr Koch’s report, and that not doing so was a breach. But he also held that that reassessment was in effect done and the breach remedied when Mr Print gave evidence: Mr Print’s conclusion was that pursuing a possession order was still a reasonable and proportionate decision. The judge agreed, rejected the defence of breach of the PSED and made the possession order.

TM appealed to the High Court, but the judge agreed with the trial judge and dismissed the appeal. TM appealed to the Court of Appeal.

What did the Court decide?

The appeal succeeded. The leading judgment was given by Nugee LJ, who said that, in light of Mr Print’s evidence that he would have made a different decision after reviewing Dr Koch’s report, it was difficult to understand how it could be maintained that the breach of the PSED was remedied by him in the witness box.

Nugee LJ noted that the PSED requires an assessment to be carried out with an open mind, and “expecting a witness “in effect” to carry out an assessment in the witness box, with all the pressures that that brings, is about as far removed from that as one could imagine” [39]. He concluded, on that basis, that the finding that Metropolitan’s breach of the PSED was remedied in the witness box could not stand.

He then provided obiter comment on whether it was possible in principle to remedy an earlier breach of the PSED. He considered that, although it was unlikely that evidence in cross-examination would suffice (for the reasons given):

“if it became apparent at trial that there was some minor point that had been overlooked it might be possible for the decision-maker to confirm that, having taken it fully into account, it made no difference” [47]

and that:

“The significant point is that although breach of the PSED can be relied on as a defence to a claim for possession, if it has been complied with, albeit belatedly, the Court is not obliged to refuse the claim for possession, any more than it is obliged in judicial review proceedings to quash a decision where there has been belated compliance…  The Court does not act as some sort of mentor or nanny to decision-makers… and its approach should not be that of a disciplinarian, punishing for the sake of it” [50]

Green LJ added that a proper PSED evaluation did not always have to pre-date the relevant decision.

Comment

Several interesting and important points of principle arise out of this decision:

1. The PSED is a continuing duty, and (as confirmed in Hotak for homelessness cases), decision-makers issuing possession claims must approach it with an open mind.
2. If a breach of the PSED is proved to have taken place prior to the decision to issue possession proceedings, there is no rule of law that such a breach is automatically a complete defence to the claim. If the breach was minor and the decision-maker can show that the breach would have made no difference, or that the duty was later complied with without causing prejudice to the defendant, a possession order may still be made.
3. However, the later the purported compliance (or the remedying of the breach) takes place, the more doubtful that it can be successful; especially if it takes place in the witness box.

Robert Winspear is a barrister at 42 Bedford Row.