06/04/2020

What a difference a PSED makes…

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

Ms Durdana was a tenant of LCH. She faced possession proceedings under ground 17 Sch 2 Housing Act 1988 – that the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant or someone acting at the tenant’s instigation.

The brief facts:

The respondent tenant, Ms Durdana, and her husband are former employees of Luton Borough Council (“the Council”). They have two children, the youngest of whom is now three years old. I shall call her “A”. She suffers from cerebral palsy. It is also common ground that Ms Durdana suffers from PTSD as a result of the trauma associated with A’s birth.

In 2009 the respondent applied to the Council for homelessness assistance. The main housing providers in Bedfordshire operate a joint allocations policy which uses a banding system to assess housing need. This requires applicants for housing assistance to complete the Bedfordshire Housing Register Application form (“the BHRA form”) in which details of their current housing situation and means must be provided.

In March 2013 the Council nominated the respondent to LCH for an allocation of accommodation at the Premises. At the time both the respondent and her husband worked for the Council. She completed a pre-allocation visit form stating that since 2009 her address had been 41 Maidenhall Road, Luton. In June 2013 both the respondent and her husband completed the BHRA form and stated falsely that their current address was 41 Maidenhall Road; that the respondent’s only bank account had a credit balance of £1,000; that she was living with her parents and had been asked to leave due to overcrowding; and that she had lived at 34 Highbury Road, Luton from September 2005 until 2009 and then at 41 Maidenhall Road since that date. LCH granted the respondent an assured shorthold tenancy of the Premises commencing on 5 August 2013.

In fact, at the time when both the visit form and the BHRA form were completed, the respondent, her husband and children lived in a ground floor flat at 425 Dunstable Road, Luton under an assured shorthold tenancy. They had also rented another property in Maryport Road, Luton between September 2001 and March 2012. The respondent’s husband had another bank account into which he had been paying a second income. The combined annual income of the respondent’s household amounted to £70,734.40. The credit balance in an account of hers was more than £6,000.

In March 2017 the respondent accepted a caution in relation to three offences of dishonesty arising from the false information contained in the application forms. Her husband pleaded guilty at Luton Crown Court to the offence of providing false information in order to obtain housing. Both have been dismissed by the Council.

Following this, LCH brought the possession proceedings. It was common ground that ground 17 was made out on one of the false statements LCH relied upon, although denied on others, but Ms D defended on the basis that it was not reasonable to make a possession order based upon the effect it would have on her and her daughter, and also that LCH had failed to perform its duties under s.149 of the Equality Act 2010 by properly considering in advance the impact on the Ms D and her daughter of seeking and obtaining possession of the Premises.

At the trial the judge found that the respondent had made false statements both as to her accommodation and as to her means and savings. She rejected the respondent’s evidence that she had forgotten about the £6,000 held in one of her accounts. She also rejected the respondent’s case that the Council and LCH had not been induced by the false statements to grant the tenancy. But she was satisfied that the appellant was in breach of the Public Sector Equality Duty (“PSED”). For this reason the claim, she held, must be dismissed. In these circumstances, it was not strictly necessary to consider whether the claim should also fail because it was not reasonable to make the possession order. But the judge indicated that in her view the fact of the breach of the PSED did make it unreasonable to order possession because it was at least a possibility that on a proper consideration by the claimant of all relevant factors the possession proceedings might not have gone ahead.

LCH customer relations manager had completed a “two-page “Equality Act Review” document signed by Ms Wilson on 20 September 2018.

“This therefore post-dates the commencement of the possession proceedings. Ms Wilson explained to the judge that she had prepared the document after consulting a solicitor who told her what to look at. She 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.”

Ms Wilson 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. This is evident from paragraph 2 of the review document. Under the heading “What issues are arising as a consequence of the tenant’s disability?” Ms Wilson has summarised the circumstances in which the respondent and her family came to be granted the tenancy but says nothing about the effect of an eviction on their disabilities.

LCH appealed the dismissal of the possession claim.

On their first argument, that the ‘Equality Review’ met the requirements of s.149 Equality Act, the Court of Appeal was against them. LCH argued that the ‘review’ met the substance, as the “fact that she (the officer) had never read s.149 and did not know what it required of LCH made no difference if in fact the review which was carried out met the standards and requirements of the PSED.”

But

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. Ms Wilson, 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.

What had not been carried out was the “open-minded conscientious enquiry referred to in the authorities”.

On LCH alternative argument, they were more successful. LCH argued that “even had Ms Wilson scrupulously carried out the enquiry, which she should have done, the ultimate decision is highly likely to have been the same”, as per Aldwyck Housing Group Ltd v Forward Ltd [2019] EWCA Civ 1334 (our report). The decision in Forward post-dated the first instance decision in this case.

LCH argued that the first instance judge hd misdirected herself:

Having explained why she considers that a breach of the PSED occurred, she addressed the consequences of that by asking herself not whether it was highly likely that on a proper consideration of the relevant factors LCH would have made the same decision, but rather whether such a conclusion was inevitable. That, says Mr Manning, sets the bar too high. Moreover, she goes on to express the view that it is likely or even highly likely that the outcome would be the same. This is relied on as indicating that had the judge asked herself the right question she would have answered it in favour of the claimants.

The Court of Appeal agreed, the judge had misdirected herself. The test was whether it was “highly likely” that LCH would have made the same decision to seek possession even if it had carried out its s.149 duty.

On the facts of this case:

My own view is that it would. Housing authorities operate under severe constraints in terms of available accommodation. There is no question that had the respondent and her husband provided honest answers to the questions in the application form they would not have been granted this tenancy. The Premises would have been allocated to other qualifying applicants of whom there were and are many. The respondent could have afforded to have rented accommodation in the private sector and should have done so.

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.

Appeal allowed. Claim remitted to the county court to make its decision on whether it was reasonable in all the circumstances to make a possession order.

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.

2 Comments

  1. Ian Narbeth

    What an enormous expenditure of resources so that dishonest people could try to play the system to their advantage. It would be interesting to learn how much this case has cost and whether Ms Durdana and her husband were ordered to pay costs.

    Reply
    • Giles Peaker

      I would expect costs of the possession claim and the appeal. There was a significant point of broader application to be heard – the EHRC intervened on the Equalities duties issue that was the sole issue of the appeal – otherwise, permission would not have been given.

      This is how the law is clarified – it is very often not on attractive cases, as those will be ones where the issues don’t arise or don’t need to be raised, but the issues are of much wider importance than the individual case.

      It is one reason why there are so many grey areas around private sector law – people are often unwilling or unable to appeal beyond the county court, but without higher court decisions, county court judgments are likely to remain variable…

      Reply

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