Public Sector Equality Duty

Introduction

The Public Sector Equality Duty (PSED) contained in s149 of the Equality Act 2010 is in the following terms:

(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3)        Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)        remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)        take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;…

(4)        The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities…

(6)        Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7)        The relevant protected characteristics are-

  • age;

  • disability;

  • gender reassignment;

  • pregnancy and maternity;

  • race;

  • religion or belief;

  • sex;

  • sexual orientation.

This page considers a number of cases where the impact of the duty under the Act has been considered in possession claims.

 

Dealing with the issue summarily

Guidance

London and Quadrant Housing Trust v Patrick

[2019] EWHC 1263 (QB)

Facts

The defendant held an assured tenancy held from the claimant, a housing association.

The defendant had caused nuisance to his neighbours and the officers of the claimant, and the claimant obtained an injunction under the Anti-social Behavior, Crime and Policing Act 2014. The Defendant breached the injunction and was sentenced by His Honour Judge Saggerson. The claimant had meanwhile issued possession proceedings. They were granted permission to amend their claim to include a mandatory ground of possession, ground 7A in Part I of Schedule II to the Housing Act 1988, based on the breach of the injunction.

The defendant filed an amended defence alleging, for the first time, inter alia, a breach of s.149 Equality Act 2010 – the Public Sector Equality Duty - said to be engaged by virtue of the defendant’s paranoid schizophrenia. Despite a number of requests for supporting medical evidence such material was only served two days before the first hearing of the possession claim.

At the hearing, again before His Honour Judge Saggerson, the claimant invited the court to dispose of the claim summarily. The defendant sought directions. Against an unusually well-established background for a first hearing under Part 55 the judge concluded that he could deal with the claim summarily and on the basis of the facts already admitted or proven. The judge made an order for possession.

After the hearing the claimant conducted a further review of the proportionality of proceeding with the eviction and concluded that it was proportionate to proceed. The defendant appealed with permission granted on a single ground, i.e whether the defence advanced under s.149 had required the judge to give directions.   

Issue

Whether the judge was entitled to dispose of the claim summarily when a defendant had established, prima facie, that his behavior arose from his disability, the substance of which had previously been unknown to the landlord?

Decision on appeal

Dismissing the appeal, Thornton J held that on the facts the claimant had complied with the PSED prior to the hearing before HHJ Saggerson, such compliance required considerably less formality than would otherwise have been the case because the disability was revealed very late in the day. Even if that was wrong the trust had considered the material provided in the time after the hearing, but before actually taking possession, and had determined to continue, any breach made no difference.

Guidance

The court gave guidance on the application of the PSED in claims for possession:

Application of the PSED

When a public sector landlord is contemplating taking or enforcing possession proceedings in circumstances in which a disabled person is liable to be affected by such decision, it is subject to the PSED.

Nature and scope of the PSED

The PSED is not a duty to achieve a result but a duty to have due regard to the need to achieve the results identified in section 149. Thus, when considering what is due regard, the public sector landlord must weigh the factors relevant to promoting the objects of the section against any material countervailing factors. In housing cases, such countervailing factors may include, for example, the impact which the disabled person's behaviour, in so far as is material to the decision in question, is having upon others (e.g. through drug dealing or other anti-social behaviour). The PSED is "designed to secure the brighter illumination of a person's disability so that, to the extent that it bears upon his rights under other laws it attracts a full appraisal".

Making inquires

The public sector landlord is not required in every case to take active steps to inquire into whether the person subject to its decision is disabled and, if so, is disabled in a way relevant to the decision. Where, however, some feature or features of the information available to the decision maker raises a real possibility that this might be the case then a duty to make further enquiry arises.

The importance of substance over form

The PSED must be exercised in substance, with rigour and with an open mind and should not be reduced to no more than a "tick-box" exercise.

Continuing nature of the duty

The PSED is a continuing one and is thus not discharged once and for all at any particular stage of the decision-making process. Thus the requirement to fulfil the PSED does not elapse even after a possession order (whether on mandatory or discretionary grounds) is granted and before it has been enforced. However, the PSED consequences of enforcing an order ought already to have been adequately considered by the decision maker before the order is sought and, in most cases, in the absence of any material change in circumstances (which circumstances may include the decision maker's state of knowledge of the disability), the continuing nature of the duty will not mandate further explicit reconsideration.

The timing of formal consideration of the PSED

Generally, the public sector landlord must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before seeking and enforcing possession and not merely as a "rear-guard action" following a concluded decision. However, cases will arise in which the landlord initially neither knew nor ought reasonably to have known of any relevant disability. The duty to "have due regard" will then only take on any substance when the disability becomes or ought to have become apparent. In such cases, the lateness of the knowledge may impact on the discharge of the PSED. For example, cases may arise in which countervailing interests justify a less formal PSED assessment than would otherwise have been appropriate. Thus, a tenant whose anti-social conduct has already been adversely affecting his neighbours for a considerable time but whose disability is raised at the eleventh hour may well find that the discharge of the PSED does not necessarily mandate a postponement of the date or enforcement of a possession order. Of course, the obligation to have "due regard" still arises but the result of the discharge of that obligation may well be less favourable to the person affected where, through delay, the landlord's options have been limited and the rights and reasonable expectations of others have assumed a more pressing character. Each case will, of course, depend on its own facts.

Recording the discharge of the duty

An important evidential element in the demonstration of the discharge of the PSED is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements. Although there is no duty to make express written reference to the regard paid to the relevant duty, recording the existence of the duty and the considerations taken into account in discharging it serves to reduce the scope for later argument. Nevertheless, cases may arise in which a conscientious decision maker focusing on the impact of disability may comply with the PSED even where he is unaware of its existence as a separate duty or of the terms of section 149.

The court must not simply substitute its own views for that of the landlord

The court must be satisfied that the public sector landlord has carried out a sufficiently rigorous consideration of the PSED but, once thus satisfied, is not entitled to substitute its own views of the relative weight to be afforded to the various competing factors informing its decision. It is not the court's function to review the substantive merits of the result of the relevant balancing act. The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.

 

Court of Appeal

Forward v Aldwyck Housing Group

[2019] EWCA Civ 1334

Longmore LJ:

"I would for my part decline to accept the proposition that, as a general rule, if there is a breach of the PSED, any decision taken after such breach must necessarily be quashed or set aside or even the proposition that there is only a narrow category of cases in which that consequence will not follow." (para 21)

It seems, to me, therefore, that it was open to the judge to make the possession order (and to Cheema-Grubb J to refuse to set aside) if on the facts, there was only one answer to the claim for possession. Just as in Barnsley v Norton the court could be satisfied that consideration of Sam's disability would not have made any difference to the local authority's decision to seek possession, so the district judge in this case could, if the facts of the case warranted it, conclude that compliance with its duty in respect of Mr Forward's disability would likewise have made no difference to the landlord's decision to seek possession." (Para 32)

 

Anti-social Behaviour

Carrying out the duty at different stages

Powell v Dacorum Borough Council

[2019] EWCA Civ 23

Summary

A local authority landlord had not breached the public sector equality duty under s149 of the Equality Act 2010 in seeking to enforce a suspended possession order following its tenant's continued criminal activity at the property. Even if the local authority had been in breach of its statutory duty at the time it had decided to request the warrant for possession, it had remedied any defect later in the proceedings.

Facts

The local authority had sought possession of the appellant's property for non-payment of rent and breaches of his tenancy agreement following his conviction for committing drug offences there.

In his defence, the tenant had asserted that repossession would be unreasonable because he suffered from depression and hepatitis C, but made no reference to the public sector equality duty (PSED) under the Equality Act 2010, section 149.

In October 2015, the court made a suspended possession order, which was not to be enforced so long as the appellant observed the terms and conditions of the tenancy agreement. Three months later, police executing a search warrant at the property found drugs paraphernalia. The local authority responded by issuing enforcement proceedings, requesting a warrant to recover possession of the property.

The tenant applied to suspend the warrant. In his witness statement, he claimed to suffer from a number of very severe health problems including anxiety, depression and hepatitis C, and that his pending treatment for hepatitis C could not proceed unless he was suitably housed. Again, there was no mention of the PSED. The local authority's anti-social behaviour (ASB) officer carried out a proportionality assessment which expressly addressed the PSED. She concluded that the tenant was capable of finding alternative accommodation when necessary and that, in view of his repeated serious criminal behaviour, it was necessary, proportionate and reasonable to seek possession.

Issues

The tenant contended that, in pursuing the enforcement, the local authority had acted in breach of the PSED. The local authority submitted that the question of proper consideration of the PSED could be taken to have been satisfied by it at the time of the making of the possession order and that, accordingly, in the absence of a change of circumstances, the matter could not be re-opened when it came to enforcement.

First instance

The district judge found that the tenant's eviction would be a proportionate measure to achieve the legitimate objectives underlying the local authority's action in enforcing the order, and that the PSED did not provide grounds for suspending the warrant. He therefore dismissed the appellant's application.

That conclusion was upheld on a first appeal to a Circuit Judge (HHJ Bloom), the judge having found that the original decision to issue a warrant was not in breach of the PSED as there was no evidence of a disability at that time and the local authority had in any event complied with that duty at a later stage.

Decision on appeal

The Court of Appeal rejected the tenant’s further appeal.

In giving the decision of the Court, McCombe LJ emphasised that previous judgments on the application and working of the PSED, as on all subjects, had to be taken in their context. The impact of the PSED was universal in application to the functions of public authorities, but its application would differ from case to case, depending on the function being exercised and the facts of the case. The decision of a government minister on a matter of national policy would engage very different considerations from that of a local authority official considering whether to take any particular step in ongoing proceedings seeking to recover possession of a unit of social housing.

On the substantive part of the appeal, the Court found that it would be grotesque to say that the local authority had failed to comply with its statutory duty when it had decided to seek a warrant for possession of the property. The local authority had been dealing with a person, the tenant, who had ill-defined health problems in 2015, but who, with legal advice, had agreed to the order made in October 2015, without mention of any alleged non-compliance with the PSED. The tenant was a habitual drug dealer and had continued to deal in drugs notwithstanding the order. Attempts had been made to find out whether his circumstances had changed and nothing new had been revealed. There had been no reason for the local authority to think that it was no longer entitled to enforce the order in accordance with its terms, whether for want of compliance with the PSED or otherwise. It was open to a social housing landlord to remedy any defect in compliance with the PSED at a later stage in the proceedings. Even if the local authority had been in breach of the PSED at the time it had decided to request the warrant, it had remedied the matter by its assessment of the situation in the ASB officer's report, and a failure of the officer to understand the strict legal terminology of PSED or the Equality Act 2010 did not mean that the relevant duty and considerations had not been borne in mind.

Comment

This case emphasises the fact-based approach that is to be taken with matters of this kind, with cases inevitably varying from one another depending on their circumstances.

It also contains useful comments on a social landlord’s obligations in respect of the PSED where there has been an agreed state of affairs and where investigations do not reveal any new circumstances, and the proper approach to take when a tenant belatedly raises a PSED argument.

 

Inadequate assessment

Likelihood of decision being the same

Luton Community Housing Ltd v Durdana

[2020] EWCA Civ 445

Summary

LCH successfully appealed the dismissal of its claim for possession against a tenant who had obtained a tenancy by deception.  Although LCH’s PSED assessment was inadequate, the correct test for the court was not whether, had the PSED been complied with, it was inevitable that the social housing provider would have made the same decision but rather, whether the same decision was highly likely. 

Facts

The respondent tenant had applied to Luton Borough Council for homelessness assistance in 2009 and had been nominated for LCH accommodation in 2013.  At both points she had misled the Council and LCH as to her family’s financial and housing situation. In May 2017 LCH commenced proceedings for possession relying on discretionary ground 17. 

The respondent’s 3-year old daughter suffered from cerebral palsy and it was common ground that the respondent herself suffered from PTSD associated with the birth.  LCH had not been made aware this before issuing proceedings.  After these were raised in the respondent’s defence, LCH attempted to comply with their Public Sector Equality Duty (PSED) by preparing a 2-page review document.  However, this document failed to consider in any detail the extent of the respondent’s and her daughter’s disabilities and did not consider at all the effect of these disabilities in relation to their eviction. 

Issues

The issues on appeal were whether the assessment carried out by LCH was sufficient to discharge LCH’s statutory duty, and, if not, whether the judge should nevertheless have granted possession on the basis that it was highly likely that LCH would have decided to continue with the possession proceedings if they had complied with the PSED.

First instance

HHJ Bloom made a number of findings of fact, accepting that the Respondent had misled LCH as to her accommodation and her family’s income and savings, and was satisfied that LCH had been induced to grant the tenancy by these false statements.  However, she also found that LCH had not complied with the PSED and that the claim must be dismissed on those grounds. She was not satisfied that it was inevitable that LCH would have come to the same decision in relation to the possession proceedings if they had carried out a full assessment.

Decision on appeal

Appeal allowed. 

While the court did not accept that LCH had complied with the PSED it held that the judge at first instance had applied the wrong test.  LCH did not have to show that it was ‘inevitable’ that they would have continued with the claim for possession if there had been an appropriate PSED assessment, but rather that it was ‘highly likely’.  Lord Justice Patten, giving the leading judgement with which Moylan LJ and Newey LJ agreed, emphasised LCH’s clear policy of seeking to remove tenants who had obtained their accommodation by deception.   The court was satisfied that, on the facts, it was highly likely if LCH had complied fully with the PSED they would still have decided to seek possession.  The case was remitted back to the county court to consider the issue of reasonableness.

Comment

This decision confirms the decision in Aldwyck Housing Group Ltd v Forward Ltd [2019] EWCA Civ 1334 (see above), that a failure to comply with the PSED will not necessarily be fatal to a possession claim if it is highly likely that the landlord would still have decided to seek possession if there had been compliance. 

The court commented that LCH’s policy of seeking possession where a tenancy had been granted on the basis of false information was justified in the face of a continuing shortage of public housing and the duties owed to other homeless applicants.

 

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