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PSED essential reading: lessons learned from L&Q v Patrick

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:

  • The PSED was not engaged until L&Q was served with the medical evidence on 26 June.
  • However, the fact that the PSED was engaged did not act as a "trump card" automatically requiring directions for trial to be given.
  • The fact that the medical was served so late affected how much regard was "due" to that evidence.
  • A fair balance needed to be struck between the equality objectives of the PSED and "other countervailing factors" – in particular, in this case, the interests of the victim of Mr Patrick's anti-social behaviour which would be seriously harmed by further delays in the case.
  • The court needed to be careful to avoid the PSED operating unfairly so as either to frustrate or postpone that balancing exercise.
  • As the PSED is a continuing duty, L&Q would, if granted possession, be obliged to reconsider the PSED in deciding whether or not to enforce the possession order – which is also relevant when the court is assessing how much weight is due to the PSED.
  • In these circumstances, L&Q was not in breach of its PSED. However, even if had been in breach, it would have made no difference to the case: the seriousness of the anti-social behaviour and its impact on Mr Patrick's neighbour meant that L&Q would have sought summary disposal of the possession claim in any event – and that decision would have been unchallengeable [see paragraph 53].

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.