12 July 2019 | Comment | Article by Rebecca Rees

Public sector equality duty and possession claims

The Equality Act 2010 helps to protect service users and employees, across a variety of characteristics, by bringing together key pieces of legislation. We recently hosted training to our clients in the housing sector to enable them to understand the process, end-to-end of such a tricky minefield of law. It highlighted that these kinds of challenges are highly complex and have the potential to be costly if progressed to a full hearing. Similar issues arise involving human rights act cases. Where a tenant is evicted for reasons that relate to behaviours linked to mental health for example or where to restrict their behaviour would potentially breach their human rights, the legal arguments required are often extensive.

As a result, we have been eagerly awaiting the outcome of the High Court appeal in the case of London and Quadrant v Patrick [2019] EWHC 1263.

It had previously been found that a court faced with a human rights act challenge to a possession claim will frequently be able to dismiss it at the first hearing on the basis that the defence is not “seriously arguable” so if it was deemed sufficiently weak an argument, it would go no further and legal costs kept to a minimum. However, for some time there was uncertainty over whether the same principle applied to Equality Act (EA) defences. They also require an assessment of “proportionality” when seeking possession so the burden of proof is on the housing association to show that either there is no discrimination, or that the possession action is proportionate in order to manage its housing stock.  The Supreme Court has since made it clear (in Ackerman Livingstone v Aster) that the protections which arise under the Equality Act are not the same as the Human Rights protections. The court therefore cannot adopt the same summary approach to whether the defence ought to proceed to a full trial.

That does not, however, mean it is not possible for them to be dealt with on a summary basis. Civil Procedure Rule (CPR) 55.8 applies to both Equality Act cases as well as Human Rights Act cases and allows the judge dealing with the first hearing to either decide the claim (i.e. on a summary basis) or make case management directions to allow it to proceed to a full trial. However, the courts have adopted what appears to be a higher hurdle for Human Rights Act claims in that they have to be “seriously arguable” as well as being “genuinely disputed” on grounds which appear to be “substantial”. Equality Act cases only need to satisfy the latter test.

We now have some clarity on how this might apply in a case involving an EA defence as well as useful guidance on the public sector equality duty in a High Court appeal in the case of London and Quadrant v Patrick [2019] EWHC 1263.

L&Q sought an injunction against Mr Patrick for anti-social behaviour (ASB), which he quickly breached. On committal, the breach was admitted and a suspended sentence was given. L&Q had already issued possession proceedings for rent arrears but they now applied successfully to add the mandatory ground 7A which a tenant can only defend via Equality Act and Human Rights Act defences. Mr Patrick then filed a defence pleading a mental impairment. He also claimed that the decision to seek possession was discriminatory under Section 15 of the Equality Act and a breach of the public sector equality duty in Section 149 of the Act (the PSED). Two days before the hearing he served a medical report which confirmed he suffered from schizophrenia.

At the hearing, the judge heard evidence about the particular effect of the behaviour on one neighbour. The judge held that it was proportionate to make the possession order and so there was no defence on the basis of Section 15. It was not clear whether he found that the PSED had been breached. He held, however, that a proper PSED assessment would have led to the same result, i.e. the decision to proceed with possession. The judge dismissed the defence and ordered possession. L&Q then carried out a formal PSED assessment before seeking to enforce the order.

The court refused permission to appeal the dismissal of his discrimination (Section 15) argument. But, permission was granted to argue the PSED point – i.e. that a breach of the PSED should have led to the case going to a full trial, not a summary dismissal.

The High Court carried out a useful review of what the PSED actually required. The points made in the judgment are:

  • The PSED will be engaged whenever a public sector landlord is contemplating seeking or enforcing possession where a disabled person is liable to be affected by the decision.
  • It is not a duty to achieve a result but to have regard to the aims which Section 149 sets out in light of any countervailing factors (in most cases these will be the effects of the behaviour on others).
  • A landlord is not required to take steps in every case to identify whether a disabled person is involved, but where there is information available which raise a real possibility that there is, there may be a duty to make further enquiry.
  • It is a duty which must be exercised in substance, it is more than a tick box exercise.
  • It is an ongoing duty – that is, there may be a need from time to time to reassess if there is a change in circumstance.
  • Generally, it should be done before a decision is taken to seek possession but sometimes if the information is not available to a landlord at that time, but becomes available later, the assessment should be carried out later.
  • If the court is satisfied that the necessary consideration has been given to the PSED, it is not for the court to substitute its own decision.

The judge was not prepared to find that L&Q were in breach of the PSED. It is true that there was no formal analytical approach to it before the hearing but L&Q could not be expected to fully engage with the PSED until they were in receipt of the medical evidence, even though they were aware that there could be an issue (and had in fact requested disclosure of Mr Patrick’s medical records some time earlier). It was appropriate in the circumstances for L&Q to seek the possession order and then carry out the formal assessment before enforcing. Otherwise, it will always be in a defendant’s interest to hold onto medical evidence until the last possible moment before a hearing.

The court went on to say that even had there been a breach of the PSED, it does not follow that it was inappropriate for the court to decide the case on a summary basis. If the court is satisfied that a full assessment would have made no difference to the decision to seek possession, then it is open to the judge to dismiss the defence. The PSED is not a trump card, which meant that summary disposal was not appropriate (and, by analogy, the same must apply to the Section 15 discrimination argument).

The case has been helpful for those defending Equality Act arguments as it enables them to front load the matter at the first hearing to look at whether this is a defence the tenant can run with. Having had that decision made at such an early stage, housing providers can save significant costs and delay.

For more information about the PSED see our related blogs, which look at some other recent cases. For more information on this topic or to speak to our Housing Management team please contact us on 029 2267 5560.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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