We represented the Defendant (Durdana) in the case of Luton Community Housing Trust v Durdana (2019) (an appeal from HHJ Bloom). The Claimant sought possession based on Ground 17 of the Housing Act 1988 in respect of the Defendant’s premises. The Claimant asserted that the Defendant made fraudulent statements to Luton Council that led to the Claimant granting a tenancy to the Defendant. We argued, on behalf of the Defendant, that the Claimant was in breach of the Public Sector Equality Duty and that even if the ground was made out, it was not reasonable to order possession.
Understanding the key principles
The two most important principles of the case were Ground 17 of the Housing Act 1988 with the Claimant seeking possession based on this ground, and the breach of the Public Sector Equality Duty which formed the basis of our argument.
Ground 17 of the Housing Act 1988 - Ground 17 is the final ground of the Housing Act 1988 under which a landlord may successfully apply to court for possession. Introduced by the Housing Act 1996 it covers cases where the tenancy has been created as a result of a false statement that was knowingly made by the tenant or by someone acting on their behalf.
Public Sector Equality Duty - The Public Sector Equality Duty (PSED) is a duty on public authorities (in this case Luton Community Housing Trust) to consider how their policies or decisions affect people who are protected under the Equality Act. If a public authority has not properly adhered to its PSED duty, it can be challenged in court.
HHJ Bloom dismissed the claim. She decided that the Claimant had breached the PSED contained in section 149 of the Equality Act 2010, a fatal blow to the claim, which ultimately meant it was not reasonable to order possession. The judge granted the Claimant permission to appeal her decision that the breach of the PSED was fatal to the claim. The judge also ordered that the appeal be transferred to the Court of Appeal.
The Court of Appeal
The Court of Appeal (LJJ Patten, Moylan, Newey) heard the appeal and the Equality and Human Rights Commission (EHRC) intervened. The appeal concerned whether or not HHJ Bloom had been right to dismiss the possession claim for breach of the PSED. The court heard arguments about whether there had been a breach, whether it was appropriate to dismiss the claim, and whether HHJ Bloom had been right to find that it was not reasonable to order possession because of the breach of the PSED.
Judgment has been reserved.
Housing director Manjinder Kaur Atwal comments on the case;
“The appeal concerns the important point of principle about the interrelationship between the PSED and the court’s discretion to make a possession order under Ground 17.
“Those employed by social landlords making Equality Act 2010 decisions need to fully understand and engage with the PSED duty. A failure to comply with the PSED does and should matter as it could still result in a possession claim being dismissed. Where there has been a failure to comply, it needs to be demonstrated on the facts of any case that consideration of a disability - or other relevant protected characteristic - would not have made any difference to the decision to seek possession. Those exercising their obligations as public bodies and public function landlords cannot and should not avoid their PSED duties.
“Further guidance from the Senior Courts for the breach of PSED and consequences for possession claim is urgently needed sooner rather than later!”
The Defendant is represented by Manjinder Kaur Atwal, director of the Harrow-based housing department.