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Reported Case

A Victory for the Public Sector Equality Duty - Court of Appeal Overturns Possession Order for Failure to Comply with PSED (10 January 2022)

Date: 10/01/2022
Duncan Lewis, Reported Case Solicitors, A Victory for the Public Sector Equality Duty - Court of Appeal Overturns Possession Order for Failure to Comply with PSED

In Metropolitan Housing Trust Ltd v TM (2021) EWCA Civ 1890, we acted for the Appellant (TM) in this case where the Court of Appeal considered the impact of the Public Sector Equality Duty (“PSED”) on a claim for possession of rented residential premises; in particular, whether an earlier breach of the PSED can latterly be remedied, and to what extent.

The Court of Appeal handed down an important judgment, which went a significant way to clarifying a key question in housing possession cases - can retrospective compliance with the Public Sector Equality Duty (PSED) “remedy” an earlier breach?

The Facts of the Case

TM, a seriously disabled adult who suffers schizoaffective disorder and treatment-resistant paranoid schizophrenia, lives in supported accommodation provided by the Respondent, Metropolitan Housing Trust. Whilst in residence, he committed a number of acts of anti-social behaviour which occurred as a result of his disability. The Respondent, after carrying out a lawful PSED assessment, decided to bring possession proceedings against TM due to his anti-social behaviour. The trial to consider the Respondent’s claim was listed to take place in September 2019.

However, in October 2018 the Respondent received a report from TM’s consultant psychiatrist who found that TM “continued to experience significant symptoms of schizophrenia, which…affect his understanding of and capacity to make decisions about legal matters.” The psychiatrist continued to find 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.” The report found that TM’s involvement in the proceedings “would have a negative impact on his mental state and behaviour.”

Crucially, although a lawful PSED assessment had been carried out before initiating proceedings to seek possession, a reassessment was not carried despite this new report from the consultant psychiatrist. This was a breach of the Respondent’s PSED.

Despite this new information, the Respondent continued to pursue their claim for possession. The Respondent’s failure to comply with their ongoing PSED was raised in defence of the claim for possession when the matter appeared before Recorder Malek QC in for trial in September 2019.

At trial, when the findings of the psychiatrist’s report were put to the Respondent’s housing officer, he accepted 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.” This was recorded in the judgment of Recorder Malek QC.

Nevertheless, despite the evidence given by the housing officer, the court granted an order for possession. In his judgment, the Recorder stated that:

“[The psychiatrist’s] report on capacity should have led to a reassessment. Not doing so was a breach. However, that assessment was in effect done when [the housing officer] 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 it was not a correct decision and one that he was entitled to make at that time. Now we have [the psychiatrist’s] report in the course of these proceedings, the evidence of [the housing officer] is that in his view it is reasonable and proportionate to pursue eviction and I agree.”

Although an order for possession was made, the enforcement of the order was suspended so that suitable alternative accommodation could be found for TM.

We subsequently appealed the decision on behalf of TM. At the first appeal to the High Court, Johnson J upheld the order made by Recorder Malek QC. Johnson J found that the Recorder had correctly found that the housing officer had retrospectively complied with the PSED whilst giving his evidence at trial.

A second appeal was then brought before the Court of Appeal.

There were three questions before the Court of Appeal:

1. Is it possible to retrospectively comply with the PSED?
2. Had Metropolitan Housing Trust retrospectively complied in this case, while giving evidence?
3. Was any breach of the PSED immaterial?

This appeal was unanimously allowed by Nugee LJ, Snowden LJ, and Green LJ.

Judgment in the Court of Appeal: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1890.html

One step further…

Karon Monaghan QC (Matrix Chambers), who represented TM at the appeal, tried to push the Court a little further and sought to establish the point that the PSED was to be complied with before a relevant decision was made, and that if a decision-maker attempts to comply with the PSED late, this attempt would not “cure” the breach. However, the court did not accept this position.

In his judgment, Nugee LJ asserted that he did not think “the position is as starkly absolute” as was proposed. Nugee LJ goes to state that Zacaroli J in Forward and Taylor v Slough BC [2020] EWHC “established the proposition that in possession proceedings brought by a local authority a breach of the PSED at an early stage (for example the decision to commence the proceedings) can be remedied by compliance with the PSED at a late stage.”

However, Nugee LJ clarified,

“50. when judges say that a breach of the PSED at an early stage of the proceedings can be “remedied” by compliance with the PSED at a later stage of the proceedings, they do not mean that in such a case there never was a breach. But it may indeed mean that the breach, once remedied in this way, has no continuing consequences… 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.”

Final thoughts

The Court of Appeal unanimously found that, whilst a breach of the PSED can be remedied retrospectively, this compliance would not mean that the breach- and that the effect of any breach- should simply be ignored. The court emphasised the point that the PSED must be a pre-emptive step and non-compliance should be carefully considered by the court; however they also found that belated compliance with the PSED in a claim for possession will not be fatal to the Claimant.

The court also accepted that an attempt to remedy any breach of PSED and an attempt to comply with the duty in evidence was not ideal and it carried “obvious danger of confirmation bias”; however, the court accepts that even this late attempt to comply may be sufficient to remedy an earlier breach.

Whilst the decision by the court goes a long way to clarify the consequences that may result due to a breach of the PSED, and repeats the on-going duty of a public sector provider to comply with the PSED, it stops short of finding that a breach would be fatal to a claim for possession and that a breach may still be remedied even at the 11th hour whilst proceedings are well underway.

This case is a very clear example that social landlords should carefully consider whether to continue proceedings against tenants in disadvantaged groups during the litigation, rather than routinely pursuing claims to trial. It also reminds tenants’ representatives of the importance of the PSED as a free-standing defence.

Representation: Our housing director Manjinder Kaur Atwal and solicitor Daljit Singh Shina instructed Karon Monaghan QC of Matrix Chambers who represented TM at the Court of Appeal, and Nick Bano of Garden Court Chambers who represented TM throughout the case.


Find full details of this case on Bailii’s website here.
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