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Luton Community Housing Ltd v Durdana (2020) EWCA Civ 445

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1st May 2020

Summary

LCH successfully appealed the dismissal of its claim for possession against a tenant who had obtained a tenancy by deception.  Although LCH’s PSED assessment was inadequate, the correct test for the court was not whether, had the PSED been complied with, it was inevitable that the social housing provider would have made the same decision but rather, whether the same decision was highly likely.

Facts

The respondent tenant had applied to Luton Borough Council for homelessness assistance in 2009, and had been nominated for LCH accommodation in 2013.  At both points she had misled the Council and LCH as to her family’s financial and housing situation.

In May 2017 LCH commenced proceedings for possession relying on discretionary ground 17.

The respondent’s 3-year old daughter suffered from cerebral palsy and it was common ground that the respondent herself suffered from PTSD associated with the birth.  LCH had not been made aware this before issuing proceedings.  After these were raised in the respondent’s defence, LCH attempted to comply with their Public Sector Equality Duty (PSED) by preparing a 2-page review document.  However, this document failed to consider in any detail the extent of the respondent’s and her daughter’s disabilities and did not consider at all the effect of these disabilities in relation to their eviction.

Issues

The issues on appeal were whether the assessment carried out by LCH was sufficient to discharge LCH’s statutory duty, and, if not, whether the judge should nevertheless have granted possession on the basis that it was highly likely that LCH would have decided to continue with the possession proceedings if they had complied with the PSED.

First Instance

HHJ Bloom made a number of findings of fact, accepting that the Respondent had misled LCH as to her accommodation and her family’s income and savings, and was satisfied that LCH had been induced to grant the tenancy by these false statements.  However, she also found that LCH had not complied with the PSED and that the claim must be dismissed on those grounds. She was not satisfied that it was inevitable that LCH would have come to the same decision in relation to the possession proceedings if they had carried out a full assessment.

Decision on Appeal

Appeal allowed.  While the court did not accept that LCH had complied with the PSED it held that the judge at first instance had applied the wrong test.  LCH did not have to show that it was ‘inevitable’ that they would have continued with the claim for possession if there had been an appropriate PSED assessment, but rather that it was ‘highly likely’.  Lord Justice Patten, giving the leading judgement with which Moylan LJ and Newey LJ agreed, emphasised LCH’s clear policy of seeking to remove tenants who had obtained their accommodation by deception.   The court was satisfied that, on the facts, it was highly likely if LCH had complied fully with the PSED they would still have decided to seek possession.  The case was remitted back to the county court to consider the issue of reasonableness.

Comment

This decision confirms the decision in Aldwyck Housing Group Ltd v Forward Ltd [2019] EWCA Civ 1334, that a failure to comply with the PSED will not necessarily be fatal to a possession claim if it is highly likely that the landlord would still have decided to seek possession if there had been compliance.  The court commented that LCH’s policy of seeking possession where a tenancy had been granted on the basis of false information was justified in the face of a continuing shortage of public housing and the duties owed to other homeless applicants.

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