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PSED and Housing: what’s left to decide?

19.02.2021

By Ruchi Parekh

In housing law circles, 2020 was arguably the year of the Public Sector Equality Duty (“PSED”). The issue was the sole focus of a number of housing related appeals involving both possessions as well as homelessness applications.

Readers will no doubt be familiar with the PSED, the duty to have due regard to the three equality aims, imposed by s.149 of the Equality Act 2010. While the general principles underlying the duty were considered by the appellate courts from its inception (see for e.g. the Bracking principles), a clarification of the context specific nature of the PSED, particularly in the housing context, came much later (see Powell v Dacorum BC [2019] H.L.R. 21).

What did we learn in 2020?

Last year, the appellate courts took the opportunity to provide further useful guidance on the subject. In particular:

  • A court is entitled to refuse to dismiss a claim for possession where a breach of the PSED is relied upon by way of defence if satisfied that it is “highly likely that the outcome would not have been substantially different” had no breach occurred: Luton Community Housing Ltd v Durdana [2020] HLR 27; Forward v Aldwyck Housing Group Ltd [2020] 1 WLR 584. The ‘highly likely’ test is derived from s.31(2A) of the Senior Courts Act 1981, which deals with the refusal of relief on an application for judicial review. As sensibly recognised by the Court of Appeal, it would be most unusual if a non-material breach could be disregarded in a public law challenge, but proved to be fatal to a private law claim in which a public law defence had been raised. 
  • A breach of the PSED can be cured by subsequent compliance with the duty at any later stage in possession proceedings: Taylor v Slough BC [2020] EWHC 3520 (Ch). If there was any remaining doubt about the validity of this principle, it was (once again) put to rest in this appeal. Readers will recall that it was first set out in Barnsley MBC v Norton [2012] P.T.S.R. 56, and reaffirmed in Powell (above).
  • When making an assessment of vulnerability to determine priority need in the homelessness context, there is no requirement to also make express findings on the applicant’s disability or the effect of the PSED: McMahon v Watford BC [2020] PTSR 1217. The Court of Appeal cautioned against using the PSED as a peg on which to hang a technical argument about an otherwise unimpeachable vulnerability assessment. The Court further noted that in practice there was a substantial overlap between the statutory duty under the Housing Act 1996 and the PSED, and that what mattered was the substance of the assessment, not its form.

What’s left to fight about?

The 2020 decisions provided welcome clarification on the nature of the PSED, as well as PSED defences. The only remaining question, then, is whether there is anything left to fight about in 2021?

On the face of it, at least, it would appear that the big questions around the PSED have been definitively answered – in so far as possession claims and homelessness appeals are concerned. We now have a series of pragmatic decisions which have come down against using the PSED as a mere technical trap, and in favour of hard-pressed housing officers in local authorities and associations across the country who are making difficult decisions day in, day out.

However, the one question which the Court in McMahon sidestepped is whether the ‘highly likely’ test applies to s.204 appeals. Having found no breach of the PSED on the facts, the Court deliberately left the question of relief for another day. That being said, the legal teams in both Durdana and McMahon have their sights set on the Supreme Court. (At the time of writing, there is nothing further to report on that front.)

It is also worth noting that we have not yet seen the articulation of these PSED principles, at the appellate level, in the context of ASB injunction proceedings (or indeed in the context of other ASB tools). It would be extremely surprising if the courts were to change their approach when it comes to these types of proceedings, but it is nonetheless very likely to be argued about. One argument floating around in recent first instance cases is whether it is a breach of the PSED (and discriminatory) to grant an interim ASB injunction against disabled persons without a full proportionality assessment. No doubt that we will see this, and other arguments, make their way to the higher courts in due course.

Only time will tell whether 2021 will outdo last year’s record on housing related PSED appeals. For now, however, the focus remains very much on pragmatism and substance over form.