PSED, Cuckooing and Possession

Cara Radford assesses applications for possession by public authorities in light of the Public Sector Equality Duty and where cuckooing is an issue.

Section 149 of the Equality Act 2010 (“the Act”) provides the Public Sector Equality Duty (“PSED”) which requires public authorities, in the exercise of its functions, to have due regard to the need to:

  1. Eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Act
  2. Advance equality of opportunity between persons who share a relevant protected characteristic and those who don’t, which involves, in particular, having due regard to the need to:
    • Remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic
    • Take steps to meet the needs of persons who share a relevant characteristic that are different to those who don’t
    • Encourage persons who share a relevant protected characteristic to participate in public life or any activity in which participation by such persons is low
  3. Foster good relations between persons who share a relevant protected characteristic and those who don’t which involves having due regard, in particular, to the need to:
    • Tackle prejudice and
    • Promote understanding

The relevant protected characteristics, as referenced above are:

  • Age
  • Disability
  • Gender reassignment
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

This section puts a specific duty on public authorities, which includes county, borough, district and parish councils[1], to have regard to points a-c in the carrying out of all of its public functions. Many Local Authorities will carry out this duty by doing a specific assessment (commonly known as an equality impact assessment) before implementing new policies or taking certain types of action. This duty has recently been the subject of two cases involving applications for possession orders, one by a borough council and one by a housing association which will be explored below.

Forward v Aldwyck Housing Group Ltd [2019]

Forward v Aldwyck Housing Group Ltd [2019] EWHC 24 (QB) (“Forward”) is a recent High Court decision that considered the PSED in relation to a possession that was based on the anti-social behaviour of the tenant. This behaviour related to drug dealing and due to it, the property was made subject to a closure order before possession was applied for. It was the opinion of the local police force that the tenant was a victim of cuckooing. The tenant put forward in his defence that he had a physical disability and suffered with depression, anxiety and a personality disorder but provided no evidence of these conditions. He also reported to the Court that his GP had made an urgent referral to the Community Mental Health Team and that he had a history of drug and alcohol abuse.

Due to the lack of evidence, the Judge in the lower court did not find that there was a vulnerability that was being exploited by others in order to gain access to the property, and so found that these others were visitors of the tenant; thus making the tenant responsible for their actions, with the Judge concluding that she was satisfied that a possession order was reasonable in the circumstances.

The appeal was brought on 3 grounds, with the main being that there had been a breach of PSED and the Judge had failed to consider what, if any, relief to grant. The Housing Association argued that a breach of PSED was immaterial as even with proper compliance, the decision to proceed with a claim for possession would not have been altered. In preparation for the appeal, two main documents were disclosed, one being a PSED assessment from the Housing Association and the other, the tenant’s medical records which confirmed a history of depression, drug abuse and a post judgment diagnosis of Emotionally Unstable Personality Disorder.

The appeal judgment considered that this was the first time that cuckooing had been considered in the context of PSED. Mrs Justice Cheema-Grubb DBE in giving judgement described PSED as requiring a broad impact assessment of the proposed action and that it should provide real aid to authorities in assessing whether their plans are appropriate to proceed with. She concluded that the appeal failed as the tenant did not provide any evidence before the lower court to conclude that eviction should not be granted. She considered that even the “(bare)” diagnosis of personality disorder post-dated the judgment and that, in the circumstances, the “appellant had not demonstrated that he was someone acting under a disability and the disability was associated with, or at least likely to be associated with the anti-social behaviour proved against him” [p38].

The Judge further assessed that a duty of inquiry may arise in PSED and that the Housing Association could have made further enquiry in this case. However, the “plainly inadequate” [p41] PSED assessment did not give rise to a successful appeal. The Judge in the lower court knew of its inadequacies and still felt there was evidence that the tenant had been complicit in what had been going on in the flat. There was evidence to suggest that even if the assessment had been carried out properly, a different conclusion would not necessarily have been reached. This was the same, despite the new medical evidence and diagnosis.

The appeal Judge concluded that the previous judgment showed that the possession order was a proportionate means of achieving a legitimate aim and that the reasonableness of the order had been considered. The appeal was dismissed.

Powell v Dacorum Borough Council [2019]

Powell v Dacorum Borough Council [2019] EWCA Civ 23 (“Powell”) is another possession case based on drug dealing amounting to anti-social behaviour but without the cuckooing element. In this case, possession was applied for by the Council due to a conviction of the tenant for cannabis possession, as well as rent arrears. A defence was lodged which detailed Article 8 arguments and described the tenant as suffering with both mental and physical disabilities, including “lows moods, depression, drug misuse and hepatitis C”. The defence made no reference to PSED and a suspended possession order was granted.

Soon after, neighbours reported frequent comings and goings of short duration at the property with the Judge concluding that the most likely explanation for these visits was drug dealing. As a result, a Closure Order, under the Anti-Social Behaviour, Crime and Policing Act 2014 was applied for and granted and a warrant for possession requested. Before making these applications, the Council tried to contact the tenant (without success), the local Community Mental Health Team, the local drug and alcohol support organisation and the tenant’s GP. The Council was told the tenant was not known to either the mental health team or the drug and alcohol support organisation and his GP did not respond.

The tenant applied to suspend the warrant for possession and supported his application with a statement, which again made reference to his disabilities but no reference to PSED. By the hearing of the suspension, a letter had been produced by a doctor on behalf of the tenant which stated that the tenant suffered from psychotic illness and a depressive episode and was on a 3 year treatment pathway. On receipt of the letter, the Council carried out a proportionality assessment which balanced the tenant’s needs against the interests of those needing accommodation and considered that the tenant could find alternative accommodation, as he had done throughout the Closure Order period.

Both the Deputy District Judge and HHJ Bloom, on appeal, concluded that the Council had not breached PSED and that if there had been any breach, it would have been rectified by the late proportionality assessment carried out following the application to suspend.

On appeal to the Court of Appeal, the appeal was dismissed and it was considered that the Council did at all relevant times comply with PSED in trying to find out the circumstances of the tenant and then, when new information came to light in the late disclosed letter, it was fully assessed and the decision confirmed.

In determining this case, the Court of Appeal considered two main cases – Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834 (“Barnsley”) and Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 (“Bracking”); hoping they would assist authorities in complying with PSED.

Barnsley provides that any breach of PSED can be remedied at a later date by giving due consideration to the duty. Bracking considers certain requirements and factors, which are summarised in the Powell judgment and paraphrased below:

    1. The important need to record all steps taken to meet the PSED
    2. That the decision maker must be aware of the duty to have due regard
    3. The duty must be exercised with rigour, it is not merely a box ticking exercise
    4. It is a continuing duty
    5. It is for the decision maker within the Local Authority to decide the weight attributed to each factor informing the decision
    6. The need to have due regard to take steps to gather the relevant information in order to properly take account of the duty

Conclusion

These two cases highlight the importance to any public authority of ensuring they comply with PSED. Both show that it is never too late to consider carrying out an assessment (even though it should have been done before any action!) and that, even “plainly inadequate” assessments do not always lead to the public authority’s application being dismissed, where any assessment would not have changed the outcome. PSED should be considered as soon as any relevant action is considered with public authorities clearly having a duty to make inquiries to obtain relevant information, a duty which is confirmed by both cases. PSED is an ongoing duty and multiple assessments may need to be undertaken, should new information come to light. Authorities should also note the importance of keeping a record of all actions undertaken in complying with PSED and should record whether the assessment showed that the proposed action was a proportionate means of achieving a legitimate aim.

Specialist advice on PSED and possession applications can be obtained from members of Becket Chambers – speak to the clerks for further information.

Cara Radford is a Pupil barrister in Becket Chambers, presently undertaking her first six pupillage.

[1] Please see schedule 19 of the Act for a full list of what is considered a public authority