Mr Steven Forward v Aldwyck Housing Group Limited  EWHC 24 (QB)
30th May 2019
Cheema-Grubb J found that the failure of the trial judge to take structured approach to the question of whether the landlord (a Housing Association) had carried out a Public Sector Equality Duty Assessment prior to seeking possession did not mean that the possession order should be set aside. In the instant case, on the evidence before the Court, it was clear that carrying out such an assessment would have made no material difference to the landlord’s decision to evict and the trial judge’s decision that that eviction was reasonable and proportionate.
Mr Forward (‘the tenant’) was an assured tenant of the Respondent housing association (‘the landlord’). The landlord sought a possession order based on grounds 12 and 14 (breach of tenancy agreement and anti-social behaviour). The behaviour relied upon was the tenant having allowed his flat to be used for drug-dealing and the related distress and disturbance that this had caused to other residents. The tenant argued that he had been the victim of ‘cuckooing,’ in that his flat was being used to deal drugs against his will, and that he was particularly vulnerable to such exploitation due to his physical and mental disabilities. The Respondent, a body carrying out a public function, failed to conduct the required impact assessment pursuant to section 149 of the Equality Act 2010 (the Public Sector Equality Duty) prior to the service of the section 8 notice or bringing a claim for possession. It was admitted at trial that a retrospective PSED assessment conducted prior to the trial had been inadequate.
The question for the Judge at first instance was whether a possession order should be made on a discretionary ground despite the fact that the landlord, exercising a public function, had failed to conduct a proper PSED impact assessment. There was also a factual question at first instance about the extent of the tenant’s disabilities and whether his disabilities were sufficiently linked to the behaviour for which the landlord was seeking his eviction. The tenant also claimed that the possession action amounted to indirect discrimination related to disability and that the eviction was not a proportionate means of achieving a legitimate aim.
At first instance, the Judge found that the behaviour relied upon was proved on the evidence and considered that there was not sufficient evidence to show that the tenant was disabled on the basis of his mental health such that he was vulnerable and not able to prevent his flat from being used by others to deal drugs. She found that the possession action did not amount to indirect discrimination and in any event had been justified as a proportionate means of achieving a legitimate aim. The Judge, relying upon a case under appeal –Hertfordshire County Council v Davies  EWHC 1488, also held that that a public law defence (such as a failure to conduct a PSED assessment) had to be linked to a private law right in order to defend a possession claim, and therefore she did not go on to consider the implications of the landlord failing to conduct a timely PSED assessment. Hertfordshire County Council v Davies  EWHC 1488 had been reversed by the Court of Appeal and therefore the Judge’s decision on this point was an obvious error of law.
Decision on appeal
On appeal Cheema-Grubb J found that the Judge at first instance had erred in law by holding that the PSED was irrelevant. However, on the facts heard in the County Court, it was clear that carrying out a valid assessment would not have resulted in a different outcome, both in respect of the landlord’s decision to evict and the court’s decision that the eviction was reasonable and proportionate. The Judge, in her decision-making process, had been correct to conclude that there was not sufficient evidence before her that the tenant was disabled by reason of his mental health, and had gone on to carefully consider all of the potential options opened to the landlord other than taking possession proceedings. In the circumstances, it would not be reasonable or proportionate to quash the possession order and remit the case back to the County Court.
The High Court
confirmed that a PSED impact assessment should be “a rigorous consideration
of the impact of the decision to commence eviction proceedings, against the
equality objectives encapsulated in the PSED is required. It must be done with
an open mind and not as a defensive ‘sweep – up’. This consideration must
itself be set in the context of promoting the statutory objectives (i.e. to (a)
remove or minimise disadvantages suffered by persons who share a relevant
protected characteristic that are connected to that characteristic; (b) take
steps to meet the needs of persons who share a relevant protected
characteristic that are different from the needs of persons who do not share
it; (c) encourage persons who share a relevant protected characteristic to
participate in public life or in any other activity in which participation by
such persons is disproportionately low –see section 149, Equality Act
2010). That had certainly not been done in this case
However, the Court cited the Court of Appeal’s guidance in In Regina
(West Berkshire District Council and another) v Secretary of State for
Communities and Local Government  EWCA Civ 441, where it had been held that a lack of a
timely assessment should not necessarily invalidate a decision. In that case a
full assessment had been made shortly after the decision, which suggested that
the decision would not have been impacted by a prior assessment. The Court
should not quash a decision as a form of discipline for the public authority
involved. Essentially, a breach of the
duty that has no material impact should not invalidate a decision.
In this case, the
High Court exercised its own discretion to decide the case in favour of the
Respondent, despite the Judge’s error of law belwo. The Court held that, given
the factual findings of the first instance Judge and the Judge’s careful
evaluation of the actions of both parties prior to the eviction, the lack of
assessment had made no difference and the case should be decided in favour of
the landlord. Despite the Judge’s failure to take a structured approach to the
landlord’s failure to conduct an assessment, it was not proportionate to remit
the case for reconsideration.
This decision is further authority supporting the view that
a landlord’s failure to comply with the PSED where relevant to a possession
action will not necessarily render the action invalid and prevent a possession
order being made. A judge must always consider whether any failure by a relevant
landlord to abide by the PSED renders the landlord’s actions unlawful. If a landlord has failed to conduct an
appropriate assessment, it will not necessarily be fatal to the possession
action, but the court must satisfy itself that the PSED impact assessment, if
it had been properly conducted, would not have led to a different outcome for