Court of Appeal allows possession despite landlord’s failure to carry out a PSED assessment

A housing association has been granted possession of a property despite not undertaking an assessment under the Public Sector Equality Duty (PSED) before issuing the claim for possession because the outcome would have been no different had it done so, the Court of Appeal has ruled.

In Steven Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334, the landlord moved to take of the possession of the claimant’s flat in 2017 after a series of warnings about anti-social behaviour and drug taking at the flat had not reduced the number of complaints from neighbours. Much of the trouble was caused by visitors to the flat.

The claim for possession was made to the District Court, two months before a PSED assessment was carried out. Mr Forward had physical disabilities with back, hip and knee pain and claimed to have a mental disability as well, although he was unable to prove this to the district judge.

At trial at Watford County Court, the housing association accepted that the assessment was inadequate because no medical advice was obtained on Mr Forward’s disabilities, alternatives to possession were not considered and neighbours’ views were given more weight than those of the police. More generally, the assessment was not carried out with an open mind.

The judge awarded possession to the housing association and found that there was no causal link between Mr Forward’s physical disability and the anti-social behaviour and that defence of indirect discrimination failed because seeking possession was a proportionate means of achieving a legitimate aim of reducing anti-social behaviour and there was no alternative way to achieve that aim.

Moreover, following Hertfordshire v Davis [2017] EWHC 1488, the breach of section 149 of the Equality Act did not provide a defence in this case because such a defence would have been rejected in any event.

Mr Forward appealed to the High Court on the basis of the breach of the s149 duty and the PSED. In the High Court judgment, Mrs Justice Cheema-Grubb found that the District Judge had been in error on relying on the decision of Davis, which has been was overturned by Court of Appeal a few days before Judge Wood’s decision.

She also overruled the District Judge’s findings around proportionality with regard to indirect discrimination. Compliance with PSED involved more than a proportionality assessment, the High Court said. There should be a rigorous consideration of the impact of the decision to seek possession against the PSED objectives. Nevertheless, Cheema-Grubb J was satisfied the landlord would make the same decision if now required to carry out a proper assessment.

The High Court’s decision was appealed on the basis there had been a breach of duty (PSED) and assessed the consequences of that breach. At the Court of Appeal, the judges rejected the appellant’s arguments that where was a breach of the PSED, any decision taken after the breach should be quashed or set aside in most cases. Instead. The Court of Appeal ruled, where facts suggested that the decision would not be substantially different if the breach of duty had not occurred, then there would be no need to quash the decision. If it was not highly likely, a quashing order may be made.