Housing Solicitors

On 12 September 2019, Recorder Hodge Malek QC, siting in the Cambridge County Court made an order for possession in the Respondent’s favour against our client, the Appellant.

The Appellant is diagnosed with schizoaffective disorder and treatment-resistant paranoid schizophrenia. He has spent long and frequent periods as an in-patient in mental health hospitals. He lacks capacity to litigate in these proceedings and acts through his litigation friend, his father.

The Appellant is the tenant of the Respondent. The property is one of 17 units of housing comprising a development which is designed for those with moderate to severe mental health difficulties. Residents of the development are provided with support, owing to their health conditions.

Over the course of four years, a number of incidents occurred at the property involving staff members. It was common ground that all of the incidents arose as a result of the Appellant’s disability and the Recorder did not ultimately make any findings that were adverse to the Appellant in relation to each incident.

The possession claim was defended on a number of different bases, including a breach of the PSED – Public Sector Equality Duty – (s149 Equality Act 2010) and disability discrimination (s15 Equality Act 2010). During the course of proceedings, further medical information had been obtained which outlined the full extent of the Appellant’s condition. The Respondent’s housing officer accepted that if this had been available to him before starting possession proceedings that he would not have done so.

At trial the judge found that the PSED had been breached. However, he determined that the breach was not material as it would have made no difference to the outcome and had been remedied during the course of giving evidence in the witness box at trial.

As such the breach did not provide a defence to possession proceedings. The judge found that it was proportionate to make a possession order and there were no lesser measures open to the Respondent. A possession order was made but enforcement suspended pending the provision of alternative suitable accommodation.


Case Summary

This order was appealed to the High Court on the basis that:

• The judge had misapplied existing case law by finding that a breach of the PSED that on the Respondent’s own evidence would have impacted upon their decision to pursue possession proceedings was not material.


• The decision that making a possession order was proportionate not in breach of s15 EA 2010 and there were no lesser measures short of possession that could have been taken to achieve the same aim was undermined by the fact that the possession order could not be enforced pending the provision of suitable alternative accommodation, itself a lesser measure.

Outcome

On appeal it was determined that the making of a possession order was proportionate. This was inter alia on the basis that possession will not take effect until such time as suitable alternative accommodation is provided.

Additionally, the decision that the breach of the PSED had been remedied in the witness box was upheld.

This is a decision that will cause some concern to housing practitioners. It was established in Forward v Aldwyck housing Group Ltd [2019] EWCA Civ 1334, that a breach of the PSED amounts to a defence to a possession claim if it is highly likely that the decision would have been substantially different absent the breach.

Whilst it was found in London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB) that a breach could be remedied retrospectively, its ambit did not extend to the breach being remedied in the witness box at trial.

The implications of this decision allow local authorities such a wide margin of error in complying with the PSED that it is arguably obsolete in possession proceedings, removing a valuable layer of protection for vulnerable people.

Permission to appeal has been sought.


Representation

The client was represented by Luton-based housing solicitor Adrian Smith Counsel instructed in the matter is Nick Bano of 1MCB Chambers.