Metropolitan Housing Trust Ltd v TM (2021) EWCA Civ 1890

We saw in Taylor v Slough Borough Council (2020) EWHC 3520 (Ch) (our note) that in possession claims where a defence of breach of public sector equality duty was raised, the courts would be prepared to accept subsequent compliance (even after the issue of proceedings) as ‘remedying’ the breach. In this second appeal, the Court of Appeal adds some important codicils to that position.

TM was Metropolitan’s assured tenant under a supported living arrangement since 2014, with care support being provided by Sanctuary Living. TM is diagnosed with schizoaffective disorder and treatment-resistant paranoid schizophrenia. The housing was in a development providing supported accommodation for individuals with moderate to severe mental health difficulties. Following two incidents in May 2018, in which TM assaulted an officer of Sanctuary and exposed himself to a female resident, Met served notice under Ground 14. (A further three incidents were considered and found at trial, some of which predated May 2018 and another from summer 2018. There have been no incidents since 2018). Before serving notice, Met’s officer had a meeting with Sanctuary and with the area CMHT, at which the officer raised the issue of TM’s capacity and asked for an assessment. None was carried out at this point. After serving notice, Met’s officer obtained an Equalities Act report from Sanctuary, which stated, under “Why, in your opinion, is starting legal action against the perpetrator both reasonable and proportionate?”:

“The assault of 15th May was the third incident in 4 years where someone has been physically harmed by (TM). No amount of attempts to aid him in getting insight to what the effects are of his actions have proved successful. Indeed it is alleged that he stated to his CPN (Community Psychiatric Nurse) that “he couldn’t promise that he wouldn’t do it again as (the staff member) had it long time coming”. This indicates that (TM) was aware of his actions and he understood that what he has done was inappropriate and wrong. (TM’s) remaining on site presents a high risk to other residents, staff and any contractors attending.”

Met’s officer then decided to issue the possession proceedings, which was done in September 2018. In October 2018, before first hearing, Met received a report by a Dr Koch:

She concluded that he continued to experience significant symptoms of schizophrenia that affected his understanding of and capacity to make decisions about legal matters; that he was not fit to instruct a solicitor as he was unable to weigh information provided to him about the court process, and had no interest in representing his interests in court; and that his taking part in the proceedings would have a negative impact on his mental state and behaviour.

Met continued the possession claim, TM’s father now acting a litigation friend. There was no formal consideration of the decision to proceed. At trial in September 2019, at which breach of the PSED formed part of the defence, Met’s officer, Mr Print, gave evidence (as recorded in the first instance judgment) to the effect that:

“Since the decision to evict, we have Dr Koch’s assessment that (TM) lacks capacity. Mr Print stated that if he had to make the decision today, he did not feel he would have pursued possession proceedings; he would have tried an alternative way of dealing with the situation if that was at all possible. However, he did consider that it remains a proportionate response to the two pleaded incidents and in their context to go through this proceeding.”

The Recorder went on to hold

“I accept that the duty in respect of the PSED is a continuing duty and that is clear from (Brown) at (168). Metropolitan should have reassessed the situation as and when they got new information in the course of the proceedings. Dr Koch’s report on capacity should have led to a reassessment. Not doing so was a breach, However, that assessment was in effect done when Mr Print gave evidence, albeit it is not satisfactory to do it in this way. It was put to him that he would have made a different decision in May 2018, but that does not mean that it was not a correct decision and one that he was entitled to make at that time. Now we have Dr Koch’s report in the course of these proceedings, the evidence of Mr Print is that in his view it is reasonable and proportionate to pursue eviction and I agree.”

A possession order was made, not to take effect until suitable alternative accommodation had been found for TM.

TM appealed, in part on the issue of breach of the PSED and the Recorder’s finding that the breach had been remedied in Mr Print’s evidence at trial. That appeal was dismissed and a second appeal brought to the Court of Appeal.

The Court of Appeal held, in Nugee LJ’s lead judgment, that:

Mr Print’s evidence at trial, so far as could be discerned, could not be taken as ‘remedying’ the breach. He stated in terms that “he did not feel he would have pursued possession proceedings but would have tried an alternative way of dealing with the situation if that was at all possible.”. The PSED is a duty to carry out a proper process, not procure a particular outcome and it must be exercised “in substance, with rigour and with an open mind”. It was difficult to recncile Mr Print’s other statement that possession remained a proportionate response.

It was hard to see how such an exercise could be carried out in the witness box.

with all the pressures that that brings, is self-evidently about as far removed from that as one could imagine. As has been said more than once, there is an obvious danger of confirmation bias whenever a decision-maker carries out an assessment in relation to a decision that has already been made, rather than in advance; and this is perhaps particularly so in the case of litigation, when costs have already been incurred and the incentive to pursue the proceedings to a successful conclusion can be very high. Where, as here, the evidence is ambiguous at best, that makes it very difficult to hold that an admitted breach has been duly remedied (even assuming that this is in principle possible); and on the facts of the present case I have come to the conclusion that the finding that Metropolitan’s breach of the PSED was remedied in the witness box cannot stand.

The appeal succeeded on this ground, possession order set aside and claim dismissed.

It was, as per Taylor v Slough BC (2020) EWHC 3520 (Ch), possible to ‘remedy’ a breach. But this should not be taken as meaning it was as if the breach had never happened. It may mean that the breach, once remedied, has no continuing consequences, or it may not.

The significant point is that although breach of the PSED can be relied on as a defence to a claim for possession, if it has been complied with, albeit belatedly, the Court is not obliged to refuse the claim for possession, any more than it is obliged in judicial review proceedings to quash a decision where there has been belated compliance.

And from Green LJ’s concurring judgment:

If the PSED is breached then because it is a continuing duty there remains an obligation upon the decision maker to adhere to the statutory duty in s. 149 to bring the breach to an end. When this happens it might, as a matter of semantics, be said that the breach has been “remedied”. However, as Nugee LJ points out (paragraph (48)), simply because it is possible to remedy a breach in this manner does not mean that the initial breach is “wiped away as if it never happened”. This is important. On first principles if a Court finds a breach by a person exercising a public law duty the Court has a discretion as to the remedy to be granted. In fashioning relief the Court will take into account all the surrounding circumstances, which will necessarily include past unlawful effects, and then choose between a range of options including quashing the underlying decision, making an order requiring something to be done, remitting the decision to be taken again, granting a declaration only, or even providing no relief if the breach was, in substance, immaterial.

For this reason I reject any suggestion made by the respondent that a belated act of compliance expunges any harmful effects of the earlier failure. I do not read any of the judgments referred to as supporting any such conclusion. An individual might, by reason of the prior failure, suffer the loss of a benefit or an entitlement. This loss does not evaporate simply because of a belated act of compliance. In the present case, the report of Dr Koch, dated 18 October 2018, identified that the claimant lacked capacity to participate in legal proceedings, in particular in the possession proceedings brought against him. This conclusion was not in dispute in the proceedings. As such, he could not give evidence about the incidents said to justify the possession order, nor could he give instructions to his litigation friend or his legal advisors. Yet, the respondent pressed forward to a trial, occurring over 12 months later, seeking possession in circumstances where the claimant did not have alternative suitable accommodation immediately available to him. He therefore suffered direct prejudice from the failure properly to perform the PSED which would (or should) have revealed his incapacity and the prejudice he faced in being subjected to possession proceedings. A delayed performance of the PSED cannot neutralise the prejudice suffered by the claimant from not being able fully to participate in the trial and in preparatory steps leading up to it; a prejudice exposing him to an increased risk of eviction.

And on ‘remedying the breach in evidence’:

The judge recognised in his judgment that this was not a satisfactory state of affairs. He nonetheless concluded that it was lawful. With respect I would disagree. Any person carrying out a PSED evaluation at trial will be subject to an innate risk of confirmation bias. A witness that gives an honest yet inculpatory answer to a question risks losing the public authority the case, and exposing the employer to a risk of costs. It also places the witness and employer at a reputational peril. Further, the evaluation required to be performed under s. 149 EA 2010 is a rounded evaluation encompassing a range of considerations which must be taken into account. It is a duty to be performed in a dispassionate and objective manner upon the basis of relevant evidence collected in advance. A hostile cross-examination is not an environment suited to the due performance of this assessment.

Finally, this case was a very clear example of why public authorities should have processes for internal administrative review of such decisions where fresh facts, evidence or challenge came to light.