Section 149 of the Equality Act 2010 imposes the “public sector equality duty” (PSED) on public authorities. It requires a public authority, when exercising any function, to have “due regard” to the need to:
- eliminate discrimination, harassment, victimisation and any other conduct prohibited by the act;
- advance equality of opportunity in relation to any person or persons who have a protected characteristic;
- foster good relations in relation to any person or persons who have a protected characteristic.
The duty applies not only to a public authority but also to any person or body exercising a public function.
As such, in any possession proceedings a social housing provider must have regard to the disabilities which either a tenant or a member of their household has when making decisions, which lead to an eviction and specifically consider the PSED in relation to those disabilities. This is in addition to the test of proportionality, which is required to avoid potential discrimination under Section 15 of the Equality Act.
Three recent cases have considered what this means in practical terms.
Case #1: Forward v Aldwyck Housing Group  EWHC 24
Forward (F) was an assured tenant; his landlord, Aldwyck Housing Group (AH) had received numerous complaints of drug dealing and related anti-social behaviour (ASB) at his property. F accepted that he had used Class A drugs at the property but claimed that all of the ASB was due to the behaviour of those visiting his property, over whom he had no control. He claimed that he was vulnerable to exploitation by others as a result of his disabilities. The written statements of two police officers seemed to support his claim that this was a case of “cuckooing”.
AH had not carried out a PSED assessment before serving notice, but one had been done by trial. In carrying out the assessment, AH did not have and did not seek medical evidence as to the claimed physical disabilities or mental ill-health. A further PSED assessment was carried out after the trial, which supported the decision to evict. Medical evidence was produced later at which point AH did a further PSED assessment. The trial judge had held that any breach of the PSED did not give rise to a defence.
On appeal, the court accepted that the judge was clearly wrong to decide that F could not defend the claim on the basis of a failure to comply with the PSED. The appeal judge also commented that the duty requires more than a simple proportionality assessment.
On the basis of the evidence before the court, however, the judge held that there was nothing to support the argument, that had the PSED assessment been done properly, it would have led to a different outcome. There had been a lack of clear evidence of the claimed disability and the impact of it. The court was unconvinced by the claim of “cuckooing” on the basis that F had not sought the assistance of the police, nor had he taken up AH’s offer of seeking injunctions to prevent the visitors coming to his property. He had opened the door to the visitors himself and in his oral evidence he had accepted they were his ‘friends’. He had not engaged with the community mental health team or with others seeking to support him.
Case #2: Powell v Dacorum Borough Council  EWCA Civ 23
The Court of Appeal then had to look at a similar issue, in the case Powell (P) v Dacorum Borough Council (DBC). P was a secure tenant, and in 2015 DBC had obtained a possession order (by agreement, P having had advice). The order was suspended on terms that P must comply with the terms of his tenancy. Shortly after, a closure order was obtained on the basis there was evidence that P was supplying cannabis from the property. DBC applied for a warrant. Before doing so, it had tried (unsuccessfully) to engage with P and to obtain information from his GP.
P applied to suspend the warrant. The PSED had not so far been raised, but at this point, P produced medical evidence in the form of a letter from a doctor. This asserted that P suffered from a number of health problems, including anxiety and depression; prior to the claim being heard, P was seen by a psychiatrist who reported that he suffered from a psychotic illness and depression. DBC carried out a “proportionality assessment” in light of this report.
Both the First Instance judge and the Circuit judge, on appeal, held that there had been no breach of the PSED, either at the point of requesting the warrant or deciding not to accede to the tenant’s application to suspend. Even if there had been, it was remedied by the PSED being given proper consideration at a later stage. The court accepted that the proportionality assessment had covered everything which the PSED required.
The Court of Appeal dismissed P’s appeal. DBC had tried to carry out enquiries before issuing the warrant and there was nothing to demonstrate a change in circumstances from the time the possession order was made. When new information came to light they carried out a proportionality assessment, which was sufficient to comply with the PSED.
Case #3: Heart of England Housing Association v M 
The County Court at Coventry dismissed a possession claim in the unreported case of Heart of England Housing Association (HEHA) v M in October 2018. M suffered from paranoid schizophrenia; medical evidence confirmed that many of the allegations of ASB were related to M’s disability. M defended the claim on the basis of disability discrimination and breach of the PSED. The District judge found that there was evidence that the disability could be managed with support and HEHA had not done enough in terms of engaging the relevant support networks.
So what do these cases tell us about the PSED?
It may in some cases give rise to a duty of inquiry – that is to go and find out more about the circumstances (particularly whether there is a disability to be aware of and what its impact is). In Powell, this had been satisfied by unsuccessful attempts to engage with P and to try and get information from his GP, as well as attempts to liaise with the Community Mental Health Team and with local drug and alcohol support unit.
In Forward, the landlord had failed to carry out enquiries, which they could have made and were only saved by being able to demonstrate that once the information was there, it would not have changed the position. HEHA v M also demonstrates the danger of not taking sufficient steps to try and ensure that support is put in place before taking action.
The cases do confirm that the PSED assessment is different to a “proportionality assessment” needed to avoid discriminatory treatment. In Forward the judge said “there can be no question that a simple proportionality assessment is not what the PSED requires. A rigorous consideration of the impact of the decision to commence eviction proceedings, against the equality objectives encapsulated in the PSED is required.”
The duty is a continuing one, requiring a revisit each time circumstances change. And as per the judge in Forward “it must be done with an open mind and not as a defensive sweep up”. If there is an initial failure to have the “due regard”, which the duty requires, it can be remedied by a later assessment.
For more information on this topic or to speak to our Housing Management team please contact us on 029 2267 5560.