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30.05.2019
The High Court has dismissed an appeal against a possession order made against a disabled tenant and, in doing so, given valuable guidance on how the public sector equality duty works in possession proceedings.
Mr Patrick was an assured tenant of L&Q. Unfortunately "things did not go well" with his tenancy and subsequently L&Q obtained an anti-social behaviour injunction against him. Within a matter of days, Mr Patrick had breached that injunction and was in due course given a suspended prison sentence.
Accordingly, L&Q sought possession of his flat on the mandatory ground 7A of Schedule 2 to the Housing Act 1988, with a hearing listed on 28 June 2018.
On 13 June, Mr Patrick filed a defence alleging disability discrimination and a breach of the Public Sector Equality Duty ("PSED"). This was the first time the issue of disability had been raised in proceedings between himself and L&Q. The defence did not particularise the nature of his mental impairment and nor was any medical evidence filed in support.
It was not until about 5pm on 26 June (effectively one working day before the hearing) that medical evidence, revealing Mr Patrick's history of schizophrenia, was served on L&Q.
The issue for HHJ Saggerson to resolve at the hearing on 28 June was whether there was substance in the Equality Act defences (CPR r.55.8). HHJ Saggerson decided that there was not and that decision has now been upheld by Mr Justice Turner.
In his judgment, Turner J reviewed the very recent PSED cases of Powell v Dacorum BC [2019] EWCA Civ 23 and Forward v Aldwyck Housing Group [2019] EWHC 24 and, having done so, set out a helpful eight-step checklist of factors which are likely to be relevant in possession cases.
Perhaps of particular interest to practitioners is paragraph 44 in which Turner J analysed in detail how much regard is "due" to the PSED where the tenant's disability is (at least in part) the cause of anti-social behaviour:
This is a valuable case for its comprehensive review of earlier authorities on the PSED and for the particular guidance it offers in possession claims. It should be added to your list of essential cases on the PSED.
Cornerstone Barristers' housing team have been at the forefront of many of the leading PSED public law cases. Most recently, Andy Lane and Ruchi Parekh acted for Dacorum in Powell v Dacorum BC [2019] EWCA Civ 23 and Matt Lewin was appointed to the Equality and Human Rights Commission's panel of counsel.
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