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Cases

Possessions and the PSED: no news is good news

06.01.2021

The High Court has recently confirmed (if there was any remaining doubt) that a breach of the Public Sector Equality Duty (“PSED”) can be cured by subsequent compliance with the duty at any later stage in possession proceedings.

In Taylor v Slough BC [2020] EWHC 3520 (Ch), Zacaroli J dismissed an appeal against a possession order, confirming the trial judge’s finding that Slough had not breached the PSED.

Background

Slough sought possession on mandatory grounds pursuant to s.84A of the Housing Act 1985, following a long history of anti-social behaviour at the premises. Prior to issuing proceedings, the Council’s housing officer undertook a formal ‘Equality Act assessment’. It was common ground between the parties that this initial assessment was carried out on the wrong premise, as it failed to recognise the Appellant’s disability, notwithstanding that the Council had been informed of her diagnosis in 2012.

During the course of the proceedings, the housing officer became aware of the Appellant’s diagnosis (or a potential diagnosis), and made additional enquiries of relevant support agencies with a view to carrying out a further equality assessment. No further form or document was however completed.

Following a two-day trial, HHJ Clarke granted a possession order and dismissed the defences based on alleged direct and indirect discrimination, breach of the PSED, and interference with Article 8 of the European Convention on Human Rights.

As regards the PSED defence, the judge concluded as follows:

  • The initial equality assessment was based on incorrect knowledge, as would have been apparent from further investigations.
  • The housing officer took her duty seriously and was aware of the continuing nature of the PSED, as demonstrated by the making of further conscientious enquiries of the various support agencies during the course of the proceedings.
  • The Council had undertaken a number of further steps to address the needs of the Appellant, including supporting a referral to intensive support services and progressing a referral for supported housing.
  • The PSED had accordingly been exercised in substance, with rigour and with an open mind.

Appeal

The only issue on appeal was whether the judge was wrong to conclude that there had been no breach of the PSED. (On behalf of Slough, it was further argued that it was highly likely that the same decision would have been reached even in the absence of any alleged breach; in light of the judge’s conclusions on the first question, this alternative argument was not considered.)

The crux of the Appellant’s argument was that, as a matter of law, it was not possible to cure a breach of the PSED by subsequent conduct. The Appellant maintained that to allow late compliance would go against the principle that compliance with the PSED must be prospective and not merely operate as a ‘rearguard action’ (see the Bracking principles).

Readers may recall that the principle of subsequent compliance with the PSED, in the context of possession proceedings, was first confirmed by the Court of Appeal in Barnsley MBC v Norton [2011] EWCA Civ 834; [2012] P.T.S.R. 56. Whilst such a principle may have been questioned from time to time, any remaining doubts were surely quashed by the more recent Court of Appeal decision in Powell v Dacorum BC [2019] EWCA Civ 23; [2019] H.L.R. 21, when McCombe LJ explicitly held that there was no inconsistency between the Barnsley principle and the general guidance provided in Bracking.

Against that legal background, and unsurprisingly, Zacaroli J categorically rejected the Appellant’s arguments on late compliance, and upheld the trial judge’s findings that, overall, Slough had properly discharged its PSED.

Comment

The appeal did not raise any new questions and as such, there is no ‘new law’ on which to report. That being said, no news is often good news, and that is certainly the case here.

It remains the case that public bodies need to comply carefully with their PSED at all stages – in substance, with rigour and an open mind. However, where mistakes are made (because of human error or otherwise), there is an opportunity to remedy such defects in the context of possession proceedings. The judgment also confirms that substance trumps form, as was evidenced by the facts in this case. No doubt local housing authorities and associations will be comforted by the restatement of these principles.

The Taylor ruling brings an end to a year that was packed with PSED-related housing appeals. The only remaining question, then, is whether there is anything left to fight about in 2021? Look out for the Cornerstone Housing Newsletter, which will explore this issue along with other recent developments in the housing world.

Ruchi Parekh, instructed by Simon Kiely (Sharpe Pritchard LLP), represented Slough Borough Council in these proceedings.