28/07/2014

The point of having policies….

A post on a County Court case, one well worth looking at for the application of public law principles, the Equality Act and reasonableness. I’m working from a note of judgment, so any quotes should be taken as being from a note, rather than a transcript.

Peabody Trust v Steven Evison (By his litigation friend) Wandsworth County Court 17 July 2014.

Mr E was the assured tenant of Peabody. He had been since after 2000 (date not clear from the note), but had lived in the property since 1981, when his father took the tenancy from Peabody, so had lived there for 33 years.

In 2012, Mr E’s rent account began to fall into arrears. In September 2012 he was visited by a Peabody officer (the only one to deal with Mr E’s tenancy through this time). The officer noted that Mr E was hearing impaired, but said he could tell Mr E had understood him as ‘he paid the rent after the visits in September and October 2012’ up to January 2013. The rent payments stopped in January 2013.

As a consequence SL [Peabody’s officer] referred the case to [Peabody]’s welfare benefits team. The referral said that [Mr E] had impaired hearing and found it difficult to communicate by telephone and had difficulty managing his affairs (I am paraphrasing) – but did not suggest any other problems. The welfare benefits team contacted (or attempted to contact) [mr E] but he did not engage. The next step was to issue possession proceedings which they did on 23 June 2013. That in fact was only four days after SL’s referral to [Peabody]’s welfare benefits team according to SL in his witness statement.

There was another referral to the welfare benefits team, in exactly the same terms, in January 2014, but by this time, there had already been a hearing in the possession claim. Mr E did not attend and an outright possession order had been made. Moreover, Mr E had been evicted and had turned up at his sister’s home asking for shelter.

Fortunately, Mr E found a solicitor. The solicitor was concerned at the difficulty he had in taking instructions and promptly made an application to set aside the possession order on the basis of his concerns over Mr E’s capacity to conduct litigation. By October 2013, there was report from a consultant psychiatrist which confirmed that Mr E did not have capacity to conduct litigation under the meaning of the Mental Capacity Act 2005 and that Mr E also had multiple disabilities – bi lateral deafness & learning disabilities – and due to a lack of school support, had great difficulties in reading and writing, which impacted greatly on dealing with the benefit system.

This report was available at the end of October 2013, but Peabody’s second referral to the welfare benefits unit of 4 January 2014 made no mention of these issues (or apparently that Mr E had been and then remained  evicted).  Mr E told the welfare team ‘I have help from elsewhere’, possibly meaning his solicitor, and the team did nothing.

The possession order was set raise on 6 January 2014. Peabody’s reaction was to pursue the proceedings, seeking a possession order, up to this hearing. Apart from two brief contacts from the welfare benefits team, Mr E hd received no other assistance from Peabody. Despite the set aside, the psychiatrist’s report and the official solicitor acting for Mr E.

Peabody has a written policy on dealing with vulnerable tenants (as it must) and that policy is described in the judgment as ‘a model of its kind’. Mr E, the Court found, would clearly fall under the definition of a vulnerable tenant.

He has learning difficulties, he has mental health needs, he has significant problems with financing and budget, he is at risk of losing his home and is illiterate.

Despite this:

SL admitted he did not follow or operate the policy. It was put to him that he did not follow paragraph 2.10, that having local knowledge he did not discuss the services of the tenant and family support team and did not make a referral to that team as appropriate. Nor is the tenant and family support promise (effective December 2013) in any shape of form fulfilled. The promise is that a case will be referred to a support worker who will keep in touch and will be the first person you speak to if you have problems. The promise indicates that [Peabody] will agree a support plan, etc. Of course it is not necessarily the case that had SL followed the policy and fulfilled the promise that the position in relation to arrears would be any different to that which it is now but I considered that it may well have been. It may well have been that given the support envisaged [Mr E] would have been given assistance to get HB and get a back date of HB to July 2014 [sic, presumably July 2013] and that would have resulted in arrears being half what they are now. Of course [Peabody]’s failure to follow its own policy does not mean that [Mr E] has a defence to the claim for possession but it is simply something I have to weigh in the balance when considering reasonableness. I consider it right to give it a considerable amount of weight. Especially given the clear evidence in Dr. Daly’s report.

Barber v London Borough of Croydon [2010] EWCA Civ 51 (our report here) was referred to and followed in finding it was not reasonable of Peabody to have done nothing except the referrals to the welfare benefits team, as Peabody had failed to follow their own policy.

On the Equality Act 2010,  Mr E alleged a breach. The Court found that the possession proceedings had arisen as a consequence of Mr E’s disability, due to the rent arrears arising from his inability to sort out benefits through his disabilities.

Given the prima facie discrimination, the court found

The pursuance of the possession proceedings is not proportionate or in pursuance of a legitimate aim – the aim is to preserve [Peabody]’s financial position and preserve housing stock. But in all the circumstances in this case the seeking of the possession order is not proportionate. Section 15(2) did not apply until January 2014, but from then [Peabody] could not say that they did not know that [Mr E] was disabled as from that time they had knowledge of D’s disability.

Further arguments under s.20 and s.35 Equality Act were not dealt with, given this finding.

On the arrears. the position was complicated by Mr E being subject to the bedroom tax, a deduction of £31 per week on rent of £150 per week. A friend of Mr E gave evidence that he would be moving in as a lodger and could afford to pay a share of the rent as he was employed. A further person might also be moving in as a lodger. This was enough to satisfy the court that rent could be paid in the future with payments of £10 per week to the arrears.

So

For the reasons given the making of the possession order is not reasonable. The question is what to do. Do I dismiss the claim or adjourn it generally or adjourn it on terms with a stop gap date. On balance I consider that litigation should be finite and having made this decision (which was clear cut) the matter should be put to rest and so I will dismiss the claim.

And Peabody to pay Mr E’s costs.

Comment

What is the point in having a policy on vulnerable tenants if it isn’t followed? It is simply inviting a public law/Equality Act defence of the kind run here. When the evidence is laid before you of someone’s vulnerability and disability – as with the psychiatrist’s report of October 2013 here, disclosed in the course of proceedings – wouldn’t it make sense to actually act on it? Rather than steam on for an eviction (as the court put it, Peabody “has sailed onwards to seek to reinstate or obtain another possession order in place of the one set-aside on 6 January”).

The worrying thing about this case (and it is far from untypical), is that even after solicitors had made it completely obvious to the landlord that the tenant was disabled and vulnerable, with an expert report, the landlord still failed to engage their policies. So, what are the prospects for a vulnerable, disabled tenant without legal representation (and determined representation at that)?

My grateful thanks to Mr E’s solicitor Haroon Sarwar, and counsel, Faisel Sadiq for the note of judgment.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. frances valenzuela

    It does not surprise me at all that a public housing landlord ignores its own policies and behaves in an unbelievably arrogant and stupid way. The only surprise was that this was not Notting Hill Housing Trust, of which I have a great deal of personal experience, none of it good.

    Reply

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