Court of Appeal and possession claims: what’s next for PSED?

30 Jul 2019

Housing, Public Law and Judicial Review

By Andy Lane

Yesterday saw the Court of Appeal handing down judgment in Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334, a case concerning the impact of a breached ‘public sector equality duty’ (PSED) on a discretionary possession claim.

Andy Lane here writes his third in a series of articles on the subject of the duty, and takes stock of where the law has ‘landed’ in this important, though oft misused, defence.

Anyone involved in local authority or housing association possession claims will be well-used to the ubiquitous defence, normally as part of a wider discrimination challenge, based on an alleged failure to comply with the public sector equality duty. It is usually a bare pleading devoid of particularisation:

  • Is it said that some regard was had to the factors set down at section 149(1) of the Equality Act 2010 but not the required “due regard” – or that no regard was had at all?
  • Which element of the duty is being focused on – the elimination of discrimination, etc; the advancement of the equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and/or the fostering of good relations between those groups?
  • What is the effect of the alleged breach? Does it ‘just’ go towards reasonableness in a discretionary possession claim? Does it invalidate a notice to quit?
  • Can the PSED be complied with ex post facto or can it be determined that breach is of no substantive effect?

The higher courts are presently going through a series of PSED/possession claim challenges:

1. Powell v Dacorum Borough Council [2019] H.L.R. 21, in which Ruchi Parekh and Andy acted for the successful authority.

2. London & Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB). Andy, Ruchi and Matt Lewin looked at the effect of Patrick in May of this year.

3. The current case, Forward.

4. Luton Community Housing Trust v Durdana (2019) (an appeal from HHJ Bloom on a Ground 17 false statement possession claim).

In Forward , the landlord sought possession of the appellant’s flat, which he held under an assured tenancy, on the discretionary grounds 12 (breach of tenancy) and 14 (anti-social conduct) of Schedule 2 to the Housing Act 1988. The complaint centred around drug activity at the flat.

The tenant’s defence of being exploited by others was rejected at first instance, as was an allegation of indirect discrimination, the trial judge finding that there was no alternative to the claim and it was in all the circumstances a “proportionate means of achieving a legitimate aim” (the legitimate aim being the reduction of anti-social behaviour at the block for the benefit of the neighbours, and the prevention of the flat being used for drug dealing). The tenant appealed on the question of the PSED.

Cheema-Grubb J acknowledged at the appeal that the trial judge should have considered the (admitted) PSED breach, and was wrong to find that just because the claim was found to be proportionate that meant the claim should be allowed despite the said breach. However, she dismissed the tenant’s appeal on the basis that the landlord would have come to the same conclusion as they did even had they complied with the PSED (and the trial judge would have so concluded).

On appeal to the Court of Appeal, those representing the tenant challenged these conclusions on 3 broad bases with regard to the PSED (there was a 2nd ground of appeal concerning the appeal judge’s treatment of the absence of evidence of a lack of mental capacity):

First, it was said that a breach of the PSED meant that the court had to dismiss the claim/set aside the order.

Secondly, there were only two categories of case in which a discretion to refuse relief had been exercised (a) cases in which there had been a subsequent compliance with the duty in that particular case, and (b) cases in which it was clear that future compliance would compensate for the prior non-compliance. This case came within neither category, and there should be no extension of such cases.

Thirdly, there was no material on which it could rightly be concluded that, if the duty had been complied with, a possession order would, in any event, had been sought and made.

Longmore LJ delivered the main judgment of the court, and roundly dismissed these grounds:

1. “21. 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.”

2. Context is important (following Powell) – these are not major government decisions but cases “in which a decision is made affecting an individual tenant of a social or local authority landlord” (24).

3. “25…Rather than acting as some sort of mentor the court should, in deciding the consequence of a breach of PSED, look closely at the facts of the particular case and, if on the facts it is highly likely that the decision would not have been substantially different if the breach of duty had not occurred, there will (subject to any other relevant considerations) be no need to quash the decision. If, however, it is not highly likely, a quashing order may be made.”

4. This was a case where it was appropriate to conclude that compliance with the PSED would have made no difference (34-36).

5. “36. Thirdly I would endorse Turner J’s reliance in Patrick on section 31(2A) of the Senior Courts Act 1981. That provides that the High Court must refuse to grant relief on an application for judicial review if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. It would be very odd if a non-material breach could be disregarded on a public law challenge but was fatal to a private law claim in which public law was relied on as a matter of defence. As Lloyd LJ pointed out in Barnsley the allowance of the defence to private law claims must carry with it the public law consequences of relying on such a defence.

So we have ‘one to go’ in Durdana, not forgetting the continued efforts of some to get this issue before the Supreme Court (they failed in Davies v Hertfordshire County Court [2018] 1 W.L.R. 4609 and we await the outcome of any application in Powell).

None of the above should be taken as encouraging social landlords to ignore the PSED, or diminishing the duty’s rightful importance. What the decided cases to date have shown however is that arid, technical PSED defences devoid of practical and factual merit can be defeated and that given the cases referred to above can be so challenged in clear and confident fashion.