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Housing association defeats defence against eviction based on 'cuckooing'

The public sector equality duty should be considered in cases of ‘cuckooing’ where a vulnerable resident’s home is taken over by others as a base for drug consumption and dealing, the High Court has said.

Mrs Justice Cheema-Grubb dismissed though an appeal brought by tenant Steven Forward against eviction by Aldwyck Housing Group for anti-social behaviour, saying he had not presented evidence of his claimed mental health problems.

Aldwyck secured a possession order against Forward in March 2018, and he appealed on the ground that the lower court was wrong to reject a defence based upon section 149 of the Equality Act 2010.

But Forward did not refer in his original witness statement to any mental health issues, the judge noted.

By the time of the trial his GP had made an urgent referral to the community mental health team and it was asserted on his behalf that mental ill-health had had a “substantial and long-term adverse effect on his ability to carry out normal day-to-day activities: in this case refusing admission to drug users, controlling the behaviour of his visitors, and safely using his home”.

He claimed the anti social behaviour of others in his flat occurred because he was vulnerable to exploitation by reason of physical and mental disability.

In Forward v Aldwyck Housing Group Ltd [2019] EWHC 24 (QB) Cheema-Grubb J observed: “The problems thrown up by the apparently growing phenomenon of ‘cuckooing’ for those who provide housing…does not appear to have been considered in the context of the PSED before now.

“The sharp point is that bad anti-social behaviour, such as that found proved by Judge Wood [at the original hearing] in this case may turn out to be a consequence of the exploitation of a susceptible tenant by criminals.

“Susceptibility may arise from a number of sources, some may be inter-linked with each other. The PSED adds value to disability discrimination legislation in that it requires a broad impact assessment of proposed action. The duty is positive in its drafting and should provide a real aid to authorities when they step back and assess whether it is appropriate to proceed with their plans. As ever, the duty must be applied in a specific context for it to have life.”

She said though that Forward’s appeal “flounders on the inescapable fact that the appellant did not provide any support for his assertion that he had mental health difficulties to such degree as to enable the judge to conclude that the eviction should not be granted against him”.

The judge said that if drugs were being dealt from Forward’s home because his mental health made him vulnerable “rather than…the fact that he was himself a drug addict, obtaining drugs from the dealers he allowed to use his property to engage in the sale of drugs, cogent evidence of such could not have been produced at trial”.

She said that although Judge Wood “did not carry out a structured enquiry, believing that it was unnecessary…if she had applied her mind to the broader considerations of s.149 Equality Act she would inevitably have come to the same answer”.

Mark Smulian

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