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PSED, breach and ‘subsequent compliance’.

Taylor v Slough Borough Council (2020) EWHC 3520 (Ch)

An appeal on the issue of whether a Council landlord’s initial failure to have regard to the Public Sector Equality Duty on commencing possession proceedings could be remedied by later performance of that duty.

Ms T was the secure tenant of Slough from 2010. In 2011, she was diagnosed with bi-polar disorder. Slough were aware of this from 2012.

On the basis of allegations of antisocial behaviour connected to drug use and supply at and from the Property, Reading Magistrates’ Court made a Closure Order for three months on 2 January 2018. A Closure Order prohibits access to the premises for a specified period.

On the same day, the Council served Ms Taylor with a notice seeking possession relying on the absolute ground for possession contained in s.84A of the Housing Act 1985 (“s.84A”), based on Ms Taylor’s antisocial behaviour.

On 21 March 2018, the Council’s housing officer with responsibility for the area, Ms Lauren Hamilton, carried out an Equality Act assessment in respect of Ms Taylor. It is common ground that the assessment was done on the wrong premise. Ms Hamilton (albeit unbeknown to her personally) assessed Ms Taylor on the basis that she had no disability, whereas the Council accepts not only that Ms Taylor has a disability (bipolar disorder) but that it had been made aware of it in 2012.

On 23 March 2018, the Council commenced possession proceedings against Ms Taylor under s.84A. On 29 March 2018 Reading Magistrates’ Court extended the Closure Order for a further three months. Ms Taylor returned to the Property on 2 July 2018. On 5 July 2018, in proceedings brought by the Claimant, Ms Taylor gave undertakings to the Court not to engage in antisocial behaviour.

During the period of the Closure Order, the antisocial behaviour at and from the Property ceased, but complaints from neighbours of such behaviour recommenced upon Ms Taylor’s return to the Property.

On 24 July 2018 the Council served notice on Ms Taylor seeking possession on the basis of ground 1 of Schedule 2 to the Housing Act 1985 (arrears of rent). Possession proceedings on that basis were issued on 12 September 2018 and a possession order was made at Slough County Court on 5 November 2018, in the absence of Ms Taylor. That was, however, set aside by agreement in March 2019.

Both possession actions were ordered to be heard together. The trial took place on 24 May 2019.

In June 2018, Ms T was diagnosed with severe Emotionally Unstable Personality Disorder in an expert psychiatrist’s report, which also made a strong recommendation for highly supported accommodation.

At the first instance possession hearing, Slough admitted that their officer had not addressed the PSED or Ms T’s disability (the diagnosis of bi-polar, which was known to Slough) in her Equality Act assessment and decision for issuing proceedings. However, Slough argued that once the officer became aware of the June 2018 diagnosis, due regard was given to the PSED subsequently

once aware of the diagnosis, Ms Hamilton had made enquiries of two agencies providing mental health support, Common Point of Entry and Turning Point, relating to the questions she would ask if carrying out an Equality Act assessment.

In addition,

the Council had taken various other steps: working closely with the police, including supporting a referral to Browns intensive support services; taking steps to investigate (in light of the expert’s report) what could be done to enable Ms Taylor to obtain a highly-supported living environment from another provider (the Council not having that type of housing to offer); and visiting Ms Taylor with the police to discuss her housing needs.

The Circuit Judge concluded that on the evidence,

the Council had taken very seriously Ms Taylor’s vulnerabilities, had treated her as disabled and exercised with rigour, in substance and with an open mind the duty to have regard to her disability. This was evidenced, for example, by Ms Hamilton having gone back and relooked at all of the issues the moment it became apparent there was a potential diagnosis.

As such, the Council had complied with the PSED, and that defence (as well as other defences raised, including discrimination) failed.

Ms T appealed, arguing that a breach of the PSED could not be ‘cured’ by subsequent compliance.

The High Court reminded itself of the approach to PSED in possession cases as set out in London & Quadrant Housing Trust v Patrick (2020) 1 P & CR 5 (our report here).

“Application of the PSED
(i) When a public sector landlord is contemplating taking or enforcing possession proceedings in circumstances in which a disabled person is liable to be affected by such decision, it is subject to the PSED.

Nature and scope of the PSED
(ii) The PSED is not a duty to achieve a result but a duty to have due regard to the need to achieve the results identified in s.149. Thus when considering what is due regard, the public sector landlord must weigh the factors relevant to promoting the objects of the section against any material countervailing factors. In housing cases, such countervailing factors may include, for example, the impact which the disabled person’s behaviour, in so far as is material to the decision in question, is having upon others (e.g. through drug dealing or other anti-social behaviour). The PSED is “designed to secure the brighter illumination of a person’s disability so that, to the extent that it bears upon his rights under other laws it attracts a full appraisal”.

Making inquires
(iii) The public sector landlord is not required in every case to take active steps to inquire into whether the person subject to its decision is disabled and, if so, is disabled in a way relevant to the decision. Where, however, some feature or features of the information available to the decision maker raises a real possibility that this might be the case then a duty to make further enquiry arises.

The importance of substance over form
(iv) The PSED must be exercised in substance, with rigour and with an open mind and should not be reduced to no more than a “tick-box” exercise.

Continuing nature of the duty
(v) The PSED is a continuing one and is thus not discharged once and for all at any particular stage of the decision making process. Thus the requirement to fulfil the PSED does not elapse even after a possession order (whether on mandatory or discretionary grounds) is granted and before it has been enforced. However, the PSED consequences of enforcing an order ought already to have been adequately considered by the decision maker before the order is sought and, in most cases, in the absence of any material change in circumstances (which circumstances may include the decision maker’s state of knowledge of the disability), the continuing nature of the duty will not mandate further explicit reconsideration.

The timing of formal consideration of the PSED
(vi) 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.

Recording the discharge of the duty
(vii) An important evidential element in the demonstration of the discharge of the PSED is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements. Although there is no duty to make express written reference to the regard paid to the relevant duty, recording the existence of the duty and the considerations taken into account in discharging it serves to reduce the scope for later argument. Nevertheless, cases may arise in which a conscientious decision maker focussing on the impact of disability may comply with the PSED even where he is unaware of its existence as a separate duty or of the terms of section 149.

The court must not simply substitute its own views for that of the landlord
(viii) The court must be satisfied that the public sector landlord has carried out a sufficiently rigorous consideration of the PSED but, once thus satisfied, is not entitled to substitute its own views of the relative weight to be afforded to the various competing factors informing its decision. It is not the court’s function to review the substantive merits of the result of the relevant balancing act. The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”

There was an initial breach of the PSED in the March 2018 assessment by Slough, which had treated Ms T as being without disability, when it was known to Slough that she did have a relevant disability.

The question was whether Slough’s subsequent conduct could cure the breach, and, if so, whether it was sufficient to do so.

The High Court notes that in three cases, the Court of Appeal held that a breach of PSED was curable: Barnsley Metropolitan Borough Council v Norton (2011) EWCA Civ 384 (our note); Powell v Dacorum Borough Council [2019] HLR 21 (our note); and Aldwyck Housing Group Ltd v Forward [2020] 1 WLR 584 (our note).

These authorities establish, in my judgment, the proposition that in possession proceedings brought by a local authority a breach of the PSED at an early stage (for example the decision to commence the proceedings) can be remedied by compliance with the PSED at a late stage (for example in deciding to continue the proceedings). Accordingly, I reject the contention that the Judge was wrong as a matter of law to conclude that there had overall been compliance by the Council with the PSED notwithstanding the original Equality Act assessment had been undertaken without complying with the PSED.

That is not to say that the fact that the PSED was not complied with at the earlier stage is irrelevant to the question of later compliance. It is always necessary to find that the public authority has complied in substance, with rigour and with an open mind with the PSED. Where a public authority has commenced proceedings without complying with the PSED, it is important to guard against the risk that its subsequent purported compliance when deciding to continue the proceedings was tainted by the incentive not to depart from a decision already made. That, however, is relevant to the question of fact – whether it has complied with the PSED in the particular circumstances – and is not a bar to it curing the breach as a matter of law.

In this case, although the officer had not carried out a further specific equalities impact assessment, despite intending to, that lack of a record was not in itself a further breach. The findings of fact by the Judge below as to the Council’s actions were certainly sufficient for her to have reached the conclusion she did as to subsequent compliance with the PSED.

In my judgment, Mr Vanhegan’s submissions do not come close to establishing that the Judge’s finding of fact that, on the totality of the evidence, the Council had complied with the PSED in making its decisions since June 2018 was unsupported by the evidence or was one which no reasonable judge could have reached. I was not in fact referred to any of the underlying witness evidence which the Judge read or heard in order to persuade me that the Judge’s conclusion was unsupported by the evidence.

As Ms Parekh pointed out, the specific aspect of the PSED upon which Mr Vanhegan relied relates to the need to take steps to meet the needs of Ms Taylor in the light of her disability. The evidence relied on by the Judge,(…), demonstrate that the Council did just that.

Appeal dismissed.

Comment

As we’ve noted before, the trajectory of case law on equality/PSED challenges is that ‘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.’

Where a breach has occurred and the evidence points to the subsequent compliance as being substantive, rather than the council’s “subsequent purported compliance when deciding to continue the proceedings (being) tainted by the incentive not to depart from a decision already made”, it is unlikely to be enough to rely on the initial breach, even in situations where there has not been another formal assessment.

 

 

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.

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