Forward v Aldwyck Housing Group Ltd (2019) EWCA Civ 1334

The Court of Appeal considers the effect of an admitted breach of the Public Sector Equality Duty under s.149 Equality Act 2010 on possession proceedings.

Mr F had an assured tenancy from Aldwyck. Soon after the tenancy started, there began what would be repeated incidents of conduct causing a nuisance or annoyance to others nearby, with the property being used to sell drugs by other people and known drug users attempting to gain entry. In May 2017, a closure order was made, and this was extended. in July 2017,  Aldwyck brought possession proceedings on grounds 12 and 14 Housing Act 1988.

Mr F had a physical disability in that he had severe back, hip and knee pain on the right side of his body.

The police view was that it was likely that Mr F was subject to ‘cuckooing’, where those operating a drugs line run by mobile telephone take over the address of a vulnerable person and use it to deal in drugs. Some of Mr F’s neighbours asserted that Mr F was himself dealing.

The housing officer who made the decision to seek possession carried out a PSED assessment after proceedings had commenced but before trial. At trial, the officer

accepted in cross-examination that it had been inadequate because, although she was aware of Mr Forward’s disability, she had not obtained any medical advice about it and because she had not done the assessment with an open mind; she had not considered any alternative to the possession proceedings which were already in train and had preferred the residents’ views to those of the police in relation to Mr Forward’s use of drugs. The result of this was that it was common ground before both Judge Wood and Cheema-Grubb J that there had been a breach by the landlord of its public sector equality duty (see High Court judgment para 29).

Despitee this, a possession order was made at first instance, with Mr F’s assertion that he also had a mental health disability not being accepted by the court, and upheld on appeal (our note here), on the basis that even if the PSED assessement had been carried out properly, the outcome would inevitably have been the same.

This was Mr F’s second appeal to the Court of Appeal.

Mr F argued that an admitted non-compliance with the PSED meant that the court had no discretion to refuse relief to the breaching party.

There were only two categories of case in which a discretion to refuse relief had been exercised by the courts:

a) cases in which there had been a subsequent compliance with the duty in that particular case;
b) cases in which it was clear that future compliance would compensate for the prior non-compliance;

and these categories should not be extended.

Mr F also argued that the Judge on the first appeal had relied on an irrelevant matter in relying on the absence of evidence of mental incapacity as justification for her conclusion that the same decision would have been reached. The issue of Mr F’s mental health was not before her.

Aldwyck sought to withdraw the concession on breach of PSED, but this was not allowed. Aldwyck otherwise argued that the grant of relief was always discretionary.

The Court of Appeal held that there was always a discretion to grant relief for breach of PSED, and it was not limited to the two categories proposed by Mr F.

While “major governmental decisions affecting numerous people may be liable to be quashed if the government has not complied with the PSED”, that was not a presumption that should be turned into a rule for all PSED cases.

As per Powell v Dacorum Borough Council (2019) EWCA Civ 23, at (44) (our report)

“In my judgment, the previous decisions of the courts on the present subject of the application and working of the PSED, as on all subjects, have to be taken in their context. The impact of the PSED is universal in application to the functions of public authorities, but its application will differ from case to case, depending upon the function being exercised and the facts of the case. The cases to which we have been referred on this appeal have ranged across a wide field, from a Ministerial decision to a close a national fund supporting independent living by disabled persons (Bracking) through to individual decisions in housing cases such as the present. One must be careful not to read the judgments (including the judgment in Bracking) as though they were statutes. The decision of a Minister on a matter of national policy will engage very different considerations from that of a local authority official considering whether or not to take any particular step in ongoing proceedings seeking to recover possession of a unit of social housing.”

And so

Thus, although as a matter of fact relief has to date been refused only in the categories of case identified by Mr Vanhegan, I do not read the authorities as saying that, as a matter of law, it is only in those categories that there is a discretion to refuse relief. That would be contrary to the general rule of public law that the nature of the relief granted is a matter of discretion and, as Lloyd LJ pointed out, the fact that the point is taken by way of defence can make no difference to that general position.

On the facts, the first appeal judge had been entitled to find that the PSED would have made no difference to the outcome.

In the first place there was a finding that there was no viable option for the landlord other than to seek possession, see Judge Wood’s judgment para 167. The argument in court naturally concentrated on Mr Forward’s disability; but it was highly important for the landlord to bear in mind the position of the other tenants in the block whose lives were blighted by Mr Forward’s breach of the terms of his tenancy. On any view their position was of great importance.

Secondly it is not for this court to substitute its view for that of the lower courts, unless there was some error of legal approach. In the absence of any such error, the decision of the courts below should be respected.

Thirdly I would endorse Turner J’s reliance in Patrick on section 31(2A) of the Senior Courts Act 1981. That provides that the High Court must refuse to grant relief on an application for judicial review if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. It would be very odd if a non-material breach could be disregarded on a public law challenge but was fatal to a private law claim in which public law was relied on as a matter of defence. As Lloyd LJ pointed out in Barnsley the allowance of the defence to private law claims must carry with it the public law consequences of relying on such a defence.

On the alleged reliance on the absence of mental health evidence, the Judge’s remarks were in the conext of the alleged ‘cuckooing’.

It may be said that it was not strictly necessary for the judge to have considered cuckooing at all in the light of Judge Wood’s finding in paras 86-87 that Mr Forward was not being visited without his permission. But Cheema-Grubb J no doubt thought it was helpful to reiterate that this was not a cuckooing case. Her remarks on the subject were only the introductory part to her “conclusion” the rest of which proceeded on entirely orthodox lines.

Appeal dismissed.

Comment

This is not, of course, an excuse for public bodies/public function landlords to avoid their Public Sector Equality duties. It would be a high risk tactic to rely on a ‘well, it wouldn’t have made any difference’ submission. But, as we have seen with other recent equality duty cases on possession claims, the courts are not keen to let a formulaic interpretation of the performance of the duty simply prevent dealing with the cases on the facts.

It is notable that when Mr F raised the issue of failing to deter public bodies from doing their duty, the Court of Appeal said “For my part, I would resist the notion that the court should act as some sort of mentor or nanny to decision-makers.” That is to say, the courts are not there to provide a disciplinary role.