PSED – An Update

Previously, I have considered the Public Sector Equality Duty (“PSED”) and possession proceedings in my article entitled “PSED, Cuckooing and Possession”. Whilst I appreciate that possession proceedings may not be at the forefront in the current climate (and for more information on this, please see Paul Tapsell’s article regarding possession proceedings and the Coronavirus Act 2020 here; recently, the case of Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445 (“Durdana”) was heard in the Court of Appeal on that same topic. In my previous article, I concluded that late PSED assessments or even assessments that were “plainly inadequate” would not always lead to a public authority’s application for possession being dismissed, if any assessment would not have changed the outcome. Durdana seems to takes this matter further.

Background
In Durdana, both the tenant and her husband were former employees of Luton Borough Council. They had two children, one of whom suffers from cerebral palsy (“A”). A was the youngest of the Respondent’s two children, at 3 years old. It was also accepted by the Luton Community Housing that the Respondent tenant suffers from PTSD.

In 2009, the Respondent applied to the Council for homelessness assistance. This required an application form to be completed which asked for the details of the applicant’s current housing situation and their means. In completing that form, the Respondent and her husband falsely stated that they had lived at 41 Maidenhall Road since 2009, that the Respondent’s only bank account had a credit balance of £1000 and that she was living with her parents but had been asked to leave due to overcrowding.

On the 5th August 2013, Luton Community Housing granted the Respondent an assured shorthold tenancy of 3 Griggs Gardens. Subsequent to this it was found that at the time the application form was completed the Respondent, her husband and their children lived in a flat at 425 Dunstable Road under an assured shorthold tenancy. They had also rented another property in Maryport Road between September 2001 and March 2012. The Respondent’s husband had another bank account where a second income was paid into and the combined annual income of the couple was just over £70,000. The credit in one of the Respondent’s bank accounts was in excess of £6000.

In March 2017, the Respondent accepted a caution in relation to 3 offences of dishonesty arising from the false information contained within the application form and her husband pleaded guilty to the offence of providing false information in order to obtain housing. Both were also dismissed from their employment with the Council.

On 17th May 2017, Luton Community Housing served a notice seeking possession. Possession was sought with reliance on Ground 17 of Schedule 2 of the Housing Act 1988 (http://www.legislation.gov.uk/ukpga/1988/50/schedule/2). This Ground permits the Court to order possession where a landlord was induced into granting the tenancy by a false statement made knowingly or recklessly by the tenant or someone acting at the tenant’s instigation.

The Respondent denied all but one of the false statements relied upon but accepted that she made a false statement about never having had any legal or financial interest in rented property. Therefore, it was common ground that Ground 17 was made out. The Court then needed to consider whether it was reasonable to grant a possession order as Ground 17 is a discretionary, rather than mandatory, ground.

PSED
The Respondent contended that it was not reasonable for the Court to make an order for possession when having regard to the effect such an order would have on her and A. The Respondent further alleged that Luton Community Housing had not performed their duties under Section 149 of the Equality Act 2010 (http://www.legislation.gov.uk/ukpga/2010/15/section/149) by not properly considering in advance the impact seeking and obtaining possession would have on herself and A.

The trial Judge found that the Respondent had made false statements as to her accommodation, means and savings. She rejected the Respondent’s evidence that she had forgotten about the £6000 in one of her accounts. However, the Judge was also satisfied that Luton Community Housing was in breach of PSED and held that, for this reason, the claim for possession must be dismissed. The Judge found in these circumstances, it was not necessary to consider whether the claim should also fail due to reasonableness but indicated that in her view, the breach of PSED make it unreasonable to order possession because it was at least a possibility that, on proper consideration, the proceedings might not have gone ahead. The trial Judge, however, did not attempt to carry out that assessment herself.

The Appeal
Luton Community Housing appealed this judgment on 3 grounds. These all related to the Judge’s dismissal of the possession claim due to non-compliance with PSED.

In the appeal judgment, Lord Justice Patten (with whom Lord Justice Moylan and Lord Justice Newey agreed) considered the trial Judge’s findings. This included that Ms Zoe Wilson, Luton Community Housing’s customer relations manager, had served the Notice Seeking Possession. She had also provided a witness statement and gave live evidence. In her witness statement, she reported that Luton Community Housing had not been made aware of the Respondent’s or A’s conditions during the tenancy but that, even in light of those conditions, it was still considered proportionate and reasonable to seek possession as the application form had misled them and prevented a ‘more needy and deserving applicant’ from being granted a tenancy.

Luton Community Housing relied upon a 2 page ‘Equality Act Review’ document signed by the same Ms Wilson on 20th September 2018, which post-dated the commencement of proceedings. Ms Wilson, in evidence, said that she had prepared it after consulting a solicitor who told her what to look at and that she had no previous experience of Equality Act assessments, did not know what Section 149 provided or what PSED comprised of and that she had not previously considered the PSED in relation to these proceedings. The documents set out 6 questions and conclusions but did not contain any detail as to how the disabilities would impact on the Respondent or A.

Medical reports had been submitted and Ms Wilson accepted in evidence that she did not know the effect of A’s disability on her day-to-day living or what impact any possession would have on A or her mother. The review document seemed to look at the disabilities and the possibility of indirect discrimination, rather than the PSED.

Lord Justice Patten found that it was right, in his opinion, to conclude there was a breach of PSED as Ms Wilson, by her own admission, had not taken account of the likely effect of the disabilities of the Respondent and A in relation to their proposed eviction despite having knowledge of the disabilities (including having received the medical reports) at that time.

The Court then considered whether, even if Ms Wilson had scrupulously carried out the enquiry, the ultimate decision would have been the same. Aldwyck Housing Group Ltd v Forward Ltd [2019] EWCA Civ 1334 (which is discussed in my previous article) was considered in that it was now well established that the Court will not dismiss a claim for possession where a breach of Section 149 is relied upon as a defence, if the Court is satisfied that it is highly likely that the outcome would not have been substantially different had no of PSED breach occurred.

It was submitted in Durdana that the trial Judge in this respect set the bar too high as she directed herself as to whether such a conclusion was inevitable, rather than whether it was highly likely on proper consideration of the factors that Luton Community Housing would have made the same decision.

Lord Justice Patten agreed that the trial Judge misdirected herself and so turned to the facts of the case and whether it was highly likely a proper PSED assessment would not have led to a different decision. The Judge found that it could not be said, on the evidence, that to move A to other accommodation would impact on her disproportionately as a result of her disabilities. Further, a move would have an impact on the Respondent; how severe that impact would be would depend on the circumstances. The matter proceeded on the basis that the impact would not be negligible but that also, it would not be irreversible.

The Judge’s view was that, in taking account of and having due regard to the evidence, Luton Community Housing would still have been highly likely to make the decision to seek possession. Consequently, the appeal was allowed and the matter was remitted back to the trial Judge in order to carry out the assessment of reasonableness needed.

Conclusion
This case builds on the judgments of Forward v Aldwyck Housing Group Ltd [2019] EWHC 24 (QB) and Powell v Davorum Borough Council [2019] EWCA Civ 23 which I considered in my previous article. In Durdana, as in Forward, the Court was met with an inadequate PSED assessment. In Forward, the assessment was described as “plainly inadequate”, however, in Durdana it was thought that the assessment was more based upon indirect discrimination and so may not even be considered a PSED assessment. In any event, the Court considered whether a proper assessment would have changed the outcome and so it seems that whether an assessment was carried out or not would not be a bar to possession being granted if the outcome would not have been different.

My advice would still be that public authorities should be considering PSED as soon as any relevant action is considered, alongside making inquiries to obtain any relevant information. It should also be kept in mind that PSED is an ongoing duty and so multiple assessments may be needed, should any new information come to light.

The judgment in the case of Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445 can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2020/445.html.

Specialist advice on PSED and possession applications can be obtained from members of Becket Chambers – please contact us clerks@becket-chambers.co.uk for further information.