Public Sector Equality Duty Arguments in Housing Possession Claims
Let’s for a moment forget the barrage of new COVID-19 announcements, provisions and amendments that have troubled us in the last two weeks and look at some substantive law!
On 26th March 2020 the Court of Appeal handed down a judgment in the latest instalment of Public Sector Equality Duty (section 149 of the Equality Act 2010) arguments in possession claims (there were four such judgments from the Court of Appeal in 2019) in the case of Luton Community Housing Ltd v Durdana  EWCA Civ 445.
What is the Public Sector Equality Duty?
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need 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.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.”
This was a possession claim based on ground 17 of Schedule 2 of the Housing Act 1988 - false statement made knowingly or recklessly by the tenant or someone acting at the tenant’s instigation to induce the grant of a tenancy. The tenant lived in the property with her husband and daughter, A. It was admitted the ground was made out (they lied about living at the incorrect address in overcrowded conditions and that they had no savings, when they had) but the tenant contended that it was not reasonable for the Court to make an order for possession having regard to the effect which a possession order would have on both her (she suffered from PTSD as a result of trauma associated with A’s birth) and A (who had cerebral palsy). She also alleged that LCH had not performed its duties under s.149 of the Equality Act 2010 (Public Sector Equality Duty) by properly considering in advance the impact on her and A of seeking and obtaining possession of the Premises.
LCH’s Customer Relations Manager had carried out a two page“Equality Act Review”. It was done after the issue of proceedings on advice from the legal department; the Manager had no previous experience of dealing with Equality Act assessments; did not know what s.149 provided or what the PSED comprised of; and had not previously considered the PSED in relation to these proceedings. She accepted in cross-examination that she did not know what the effect of A’s disability was on her day-to-day living or what impact their eviction would have on either A or her mother.
The Judge at first instance found that section 149 had been breached and operated as a complete defence to the possession claim, which was then dismissed. That decision was reached in the context of the following findings of fact:
‘I am not satisfied that the Claimant has rigorously considered the duty in the sense that it has properly considered the impact of its decision to seek possession on the equality objectives and the need to promote those aims. The clear evidence of the only witness for the Claimant was she did not understand or know about the duty. The only document relevant was not focused on the issue of the PSED at all. There is nothing other than a passing reference to and acknowledgment that the Defendant and her daughter have been diagnosed with disabilities. That does not show due regard is being paid to the same. [The Manager] had no idea how extensive the disability of the child was and indeed it is not clear she knew or considered the extent of the PTSD of the Defendant and how that would be impacted by eviction. Indeed, I am not satisfied that the Claimant can be said to have had an open mind as her evidence was that the only option was eviction. I therefore have concluded I am not satisfied that the Claimant has established that it considered its duty under PSED at all and therefore the Claimant is in breach of the same.”
There was a general finding made as to it also being unreasonable to order possession because of the breach of section 149 but not specifically because of any further considerations.
The Court of Appeal, in the leading judgment of Lord Justice Patten, commented generally on the nature of the duty enshrined in section 149. There is nothing novel about it but it is a useful summary:
’17. The duty which this section imposes is in many ways aspirational in the sense of providing encouragement to public authorities in the exercise of their functions to achieve the objectives set out in s.149(1). The Equality Act 2010 is an amalgam of earlier legislation dealing, inter alia, with discrimination on grounds of race, sex or disability. But the PSED embodied in s.149 is derived from s.49A(1) of the Disability Discrimination Act 1995 which was introduced by way of amendment in 2006. Its focus is on the general advancement of equality aims. It is not concerned to prohibit or regulate conduct which is discriminatory or with the imposition of the duty to make adjustments, all of which were existing features of the law in relation to disabled persons and have been continued in the provisions of Part 2 of the Equality Act. Nor is the duty, at least in terms, one to do anything specific in addition to or independently of the performance of the functions which the authority is carrying out. As Elias LJ observed in R (Hurley) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin) at , the duty is not a duty to achieve a particular result. The duty is one to have due regard to the need to carry out the s.149(1) objectives as part of the discharge of the various functions of the public authority concerned so as to equalise opportunity and eliminate discrimination. “Due”means appropriate in all the circumstances: see R (Baker) v Secretary of State for Communities and Local Government  PTSR 809 at …
19. …s.149 does not amend the statutory powers and functions of a public authority prescribed by other legislation. So in this case it does not limit or qualify the power of a housing authority to seek possession of premises let to persons with a protected characteristic. But in deciding whether to take or continue such proceedings the authority must perform the duty of consideration which s.149 imposes on it.’
The tenant argued that the extended definition in s.149(3) and, in particular, (3)(b) requires the authority to have due regard to the need to take steps to meet the needs of (in this case) the tenant and her daughter as disabled persons so far as they are different from the needs of other non-disabled persons. These steps include, in particular, taking account of their disabilities: see s.149(4).
The argument went further: LCH was required to have proper regard to those disabilities in deciding whether to continue to seek possession. Those disabilities and their effect were therefore a factor which mandated specific consideration as part of that decision.
The Court of Appeal agreed with that argument to an extent, but they were not the only considerations that LCH had to weigh in the balance. Its established policy of seeking possession in cases such as this where the tenancy is obtained by deception and the reasons for that policy remain material considerations in the performance of its housing functions. LCH was therefore required in the final analysis to decide whether, on the facts of this particular case, it was reasonable and proportionate to continue to seek possession notwithstanding the disabilities of the tenant and her daughter.
At paragraph 26 of the judgment, Patten LJ said the following:
‘The judge was, I think, right to conclude that there had been a breach of the PSED in this case. Although it is theoretically possible for the duty to be complied with in ignorance of what it consists of, such cases are likely to be rare and this is not one of them. [The Manager], by her own admission, had not taken into account the likely effect of the disabilities of the respondent and A in relation to their proposed eviction from the Premises, although at the time when the decision was made LCH knew what the disabilities were; knew that they were being relied on as a defence to the proceedings; and had received copies of the medical reports I referred to earlier.’
LCH further argued that even if the Equality Act assessment had been carried out properly, the outcome would still have been the same and they would have proceeded with the possession claim. The Court of Appeal accepted (following Aldwyck Housing Group Ltd v Forward Ltd  EWCA Civ 1334 at ) that it could consider whether the same decision would have still been made and concluded that it would have been the same:
’33. The task for us is to form an objective view based on that material as to whether it is highly likely that the decision would have been the same. If it is not possible to establish such a conclusion with that degree of certainty then the judge’s order must stand. Mr Manning also submitted that the judge had been wrong not to adjourn the proceedings once she was satisfied that a breach of the PSED had occurred so as to allow his client to reconsider the matter afresh in a way which complied with s.149. But the judge was never asked to take that course nor is her failure to do so one of the grounds of appeal.
34. The evidence adduced by the respondent indicates that A has a serious disability caused by cerebral palsy which imposes physical limitations on her ability to move freely around and on her ability to communicate. But she is still a very young child and at the date of the decision in 2018 was even younger. The reports do not suggest that she is at the stage of development where she requires any particular facilities and they confirm that her general state of health is good. It cannot be said on the basis of that evidence that a move to other accommodation will impact on her disproportionately as a result of those disabilities. But there may be some impact as there will be as a result of any move. The respondent is in an anxious and stressed state due to what has occurred and has not been able to finish her course of treatment. The uncertainty and disruption involved in a move will clearly have an impact on her. How severe that will be is likely to depend on the circumstances. I proceed on the basis that it will not be negligible but the evidence does not suggest it will be irreversible.
35. The question therefore is whether LCH, in paying due regard to this evidence and in considering whether it was still appropriate to seek possession, is highly likely to have made the same decision. My own view is that it would.…
36. In the face of a continuing shortage of public housing, LCH is justified in operating a policy of seeking to remove tenants who have obtained their accommodation by deception.The duties owed to other homeless applicants support and justify that policy. Mr Vanhegan has not sought to contend otherwise on this appeal. The weight to be accorded to these policy considerations as opposed to the position of the respondent and her daughter as disabled persons is, of course, a matter for LCH as the decision maker but it seems to me to be completely unrealistic to suggest that the balance of reasonableness would in this case have come down in favour of the respondent. This was not a case where the medical evidence suggested that the impact of eviction on the respondent and A as disabled persons would have been either acute or disproportionate. And nothing else could have acted as a sufficient counterbalance to the social objectives which underpinned the policies of LCH. Even after paying due regard to these disabilities LCH could lawfully have decided to continue with the claim for possession and are highly likely to have done so. For these reasons, I would allow the appeal against the judge’s order dismissing the claim.’
However, that was not the end of the matter, because the Judge at first instance did not go on to consider whether it was reasonable in all the circumstances to make the order, and because she failed to carry out any appraisal of her own as to relevant factors, the matter was to be remitted back to her to decide on the reasonableness of making the possession order. A number of the factors which the Court of Appeal considered already and referred to in the judgment would be pertinent but a consideration of reasonableness would be looking at matters as they stand now rather than in 2018 and the scope of the enquiry may be wider. The Court of Appeal felt it was not equipped to carry out that evaluation on the material available for the purposes of this appeal.
There are two lessons to take away from this. The first is to remember breach of PSED is not the only factor when considering the reasonableness of making a possession order. As seen in this case and many others, breach of PSED is curable if the decision to proceed would have been the same even if the duty had been complied with. A full consideration of all factors affecting reasonableness is still required.
The second highlights the importance of a thorough Equality Act Proportionality Assessment/PSED Review. Ultimately, it did not matter in this case that proper regard was not had to the PSED because the Court of Appeal found that the same decision on possession would still have been reached. But the PSED Review document was still heavily scrutinised and there was criticism of the whole decision-making process in failing to have regard to the duty.
From personal experience of dealing with cases such as this, this is not an uncommon occurrence. I have seen many assessments/reviews that are very much on point but there have also been many that have been way off the mark for similar reasons as were highlighted in this case: those preparing the assessments have little or no experience or indeed training in dealing with them; no real understanding as to what is required of them; they are often being asked to deal with tenant’s medical conditions which give rise to disabilities (very often involving mental health where the effect on the tenant is not readily visible); there are then technical legal issues to be considered; and they all have to be condensed into a written assessment which is complex and tricky for a lay person to do.