London and Quadrant HR v Patrick [2019] EWHC 1263 (QB) follows hard on the footsteps of Powell v Dacorum BC [2019] EWCA Civ 29 and Forward v Aldwyck Housing Group Ltd [2019] EWHC 24 (QB) (our note here), with Turner J making some fairly caustic observations about the use of the public sector equality duty in possession cases.  He ended his substantive judgment with the observation that, “I note that the decision in Forward is under appeal to the Court of Appeal. It is to be hoped that, whatever the outcome, such guidance as may be given will significantly reduce the risk that, in future, possession applications are subject to protracted delays and uncertainty which are highly prejudicial to all of those affected”.

In this case the relevant medical evidence about Mr Patrick was adduced rather late in the day, after L&Q had begun possession proceedings on the basis of ASB and the mandatory ground (after Mr Patrick had breached an injunction).  Mr Patrick had committed acts of ASB against his neighbour particularly, and there were allegations that it was ongoing even after the breach of the injunction had resulted in a suspended sentence.  Breach of the Equality Act was first pleaded in the defence to the possession claim, but the actual evidence was served two days prior to the hearing of the claim.  That evidence was that Mr Patrick suffered from paranoid schizophrenia and that, at the relevant times, he “… had been tolerably well but his family did express further concerns to the effect that his mental health was deteriorating in or around the middle part of 2017 and as a result of that the defendant’s general practitioner did refer him to mental health services, who endeavoured to engage with the defendant”.  At the hearing, the judge rejected the EA defences and found that the possession claim was not genuinely disputed on grounds which appear to be substantial (CPR 55.8), finding that, even if there had been no compliance with the PSED, such failure did not prevent the court from exercising the summary possession procedure.  After that hearing, an L&Q officer conducted a s. 149 PSED assessment, which found that it was appropriate to enforce the possession order.

This appeal as solely on the basis of whether L&Q were in breach of the PSED, and, if so, the consequences of such a breach.  Turner J found that they were not in breach of the PSED but, even if they had been, such a failure was not material and the court was entitled to make a summary possession order.  The judge set out a number of propositions of law on the PSED after considering Forward and Powell, many of which will be familiar.  However, in relation to the timing of the formal consideration of the PSED, he said:

Generally, the public sector landlord must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before seeking and enforcing possession and not merely as a “rear-guard action” following a concluded decision. However, cases will arise in which the landlord initially neither knew nor ought reasonably to have known of any relevant disability. The duty to “have due regard” will then only take on any substance when the disability becomes or ought to have become apparent. In such cases, the lateness of the knowledge may impact on the discharge of the PSED. For example, cases may arise in which countervailing interests justify a less formal PSED assessment than would otherwise have been appropriate. Thus a tenant whose anti-social conduct has already been adversely affecting his neighbours for a considerable time but whose disability is raised at the eleventh hour may well find that the discharge of the PSED does not necessarily mandate a postponement of the date or enforcement of a possession order. Of course, the obligation to have “due regard” still arises but the result of the discharge of that obligation may well be less favourable to the person affected where, through delay, the landlord’s options have been limited and the rights and reasonable expectations of others have assumed a more pressing character. Each case will, of course, depend on its own facts. ([42](vi))

The problem in this case was caused by the late service of the medical evidence.  Turner J found, though, that it was proportionate for L&Q to continue to seek an immediate possession order at the hearing and then consider the appropriateness of its enforcement (as it did).  He noted that:

… although the significance of the duty should not be underestimated, it is important that its fulfilment should not be regarded as involving any fixed hoops through which the public body must pass regardless of the stage at, or circumstances under which, the duty is engaged. Otherwise, a litigant seeking to rely upon the PSED could deliberately postpone revealing a disability for tactical advantage to the prejudice of others with a legitimate interest in the outcome of possession proceedings. I do not conclude that the motive behind the late service of the medical evidence in this case was tactical but, for whatever reason, service was so late that it was entirely reasonable for the Trust even taking into account Mr Patrick’s disability to take the course that it did in deciding to pursue the possession application without procedural delay. Otherwise the PSED could potentially operate unfairly so as either to frustrate or to postpone the entirely legitimate balancing act to be carried out between the interests of the disabled party and others affected with disproportionately adverse consequences. Such an outcome would be a distortion of the purpose of the duty. ([44])

Turner J brushed aside the criticism of L&Q’s subsequent PSED assessment as being “a rear-guard action following a concluded decision”, and considered whether, if he was wrong and there was a breach of the PSED, the possession order was wrongly made summarily.  He found that “there is no good reason on the facts of this case to categorise such a breach as being incapable of remedy through subsequent compliance” ([51]).  Even if it had been practicable to conduct the assessment prior to the hearing (which, he held, it was not), the decision to seek summary possession was unchallengeable; in line with Forward, he found that the court was entitled to uphold the decision regardless:

Of course, where a breach of the PSED is established then the court must exercise the requisite degree of care when concluding that compliance would have made no material difference. Otherwise, there is a risk that the importance of fulfilling the duty may be impermissibly demoted. Nevertheless, where, as in this case, the Judge has very carefully analysed the factors leading to his conclusion on this issue he is entitled, where appropriate, to uphold the decision. Any contrary approach would, in my view, mark the triumph of form over substance and give rise to the risk of serious injustice to those whose interests the original decision, although procedurally flawed, was rightly intended to protect.

He also thought that, if the matter had been public law proceedings, s. 31(2A), Senior Courts Act 1981 would have allowed the court to make that finding if the outcome would not have been substantially different if the conduct complained of had not occurred; it would be anomalous for the result to be different in private law proceedings ([57]).

Discussion

If we needed any further evidence of the way the wind is blowing regarding EA defences to possession claims in cases of ASB, then this provides it.  The judgment is robust and no-nonsense (or, tough and uncompromising).  On the basic point about late service of evidence, in some cases (and it is unclear whether this was one) this will cause difficulties for occupiers because it is not uncommon for there to be delays in obtaining sufficiently robust medical evidence but such late service is unlikely to be excused by such practicalities.  In these cases, it appears that the the relationship between proportionality and the threshold in CPR 55.8 will be balanced in favour of summary possession.