> Public sector equality duty in possession proceedings: context is everything

Public sector equality duty in possession proceedings: context is everything

24 Jan 2019

Introduction

Public sector equality duty (“PSED”) arguments, pursuant to s.149 of the Equality Act 2010, are increasingly used against local authority and housing association landlords – whether in defence to possession claims or in the course of applications to stay execution of such possession orders.

The Court of Appeal has today dismissed an appeal concerning a PSED challenge at the warrant stage, and provided much-needed guidance on the context-sensitive nature of the duty.

In Dacorum Borough Council v Powell [2019] EWCA Civ 23, the Court of Appeal, in a second appeal, considered an argument by the tenant that the court should have stayed execution of a warrant of possession owing to an alleged breach of the PSED.

The tenant’s application was dismissed at first instance, where the Deputy District Judge found that serious allegations of drug dealing had been proved by the Council and that these amounted to a breach of the terms of the previously made suspended possession order.

The tenant was given permission to appeal only on one ground, concerning the PSED and the Council’s anti-social behaviour policy. That appeal was dismissed by HHJ Bloom and the tenant appealed to the Court of Appeal.

Primary Findings

1. The PSED had not been pleaded in the defence, and it was accepted on the tenant’s behalf that the court could not go behind the original (suspended) possession order, which had been agreed by the parties in any event [32].

2. There was a proper analogy to be made with the recent case of Paragon Asra Housing Ltd. v Neville [2018] EWCA Civ 1712, which concerned the question of raising a discrimination challenge at both the possession order and warrant stage [48]:

“It seems to me that the situation is entirely similar to that considered by Sir Colin Rimer in the Paragon case (supra). There could be no reason for the Council to think that it was no longer entitled to enforce the order in accordance with its terms, whether for want of compliance with the PSED or otherwise.“

4. The “application [of the PSED] will differ from case to case, depending upon the function being exercised and the facts of the case” [44]:

“The decision of a Minister on a matter of national policy will engage very different considerations from that of a local authority official considering whether or not to take any particular step in ongoing proceedings seeking to recover possession of a unit of social housing.“

5. The officer dealing with the case was aware of the PSED [38] and there was no breach of the duty [48]:

“Given what was known to the Council, through Mrs Ashworth, I consider that it would be grotesque in these circumstances to say that the Council had failed to comply with its statutory duty when it decided to seek a warrant for possession of the Property. The Council was dealing with a person, Mr Powell, who (it had been alleged) had ill-defined health problems in 2015, but who (with legal advice) had agreed to the order made in October 2015, without mention of any alleged non-compliance with the PSED. He was a habitual drug dealer and was continuing to deal in drugs notwithstanding the order. Attempts were made to find out whether circumstances had changed and nothing new was revealed. It seems to me that the situation is entirely similar to that considered by Sir Colin Rimer in the Paragon case (supra). There could be no reason for the Council to think that it was no longer entitled to enforce the order in accordance with its terms, whether for want of compliance with the PSED or otherwise.“

6. Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834; [2011] HLR 46 was not inconsistent with Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 and “even if [the Council] was in such breach [of the PSED], I consider that it remedied the matter by its assessment of the situation in the light of Dr Sadler’s letter and Mr Powell’s up-to-date medical condition” [50-51].

The appeal was accordingly dismissed.

What do we learn from this case?

1. The PSED is an important duty and obligation relevant to public authorities and those exercising public functions. It is however frequently barely pleaded and almost included as an ‘afterthought’, and one of a number of defences/arguments
2. If dealt with or not raised at the possession order stage, it may be problematic for a defendant to seek to rely on the PSED when seeking to stay execution of any such order save where there has been a relevant change of circumstances.
3. The PSED is contextual and as such the degree of scrutiny and structure to its application will vary depending upon the factual circumstances
4. Social landlords would be well advised to ensure their policies and decision-making are alive to, consider and appropriately record the PSED and considerations thereto.
5. Ex post facto justification is available where there has been a potential earlier breach.
6. The question of whether the county court can ignore a breach where it would have made “no difference” remains a moot point, though there are strong arguments to suggest they can (and note authorities such as Hertfordshire County Council v Davies [2018] EWCA Civ 379; [2018] 1 W.L.R. 4609 provide strong support for the substantive argument).