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Luton Community Housing Limited v Durdana. Court of Appeal, Patten, Moylan and Newey LJJ. [2020] EWCA Civ 445, 26 March 2020 (30 March 2020)

Date: 30/03/2020
Duncan Lewis, Main Solicitors, Luton Community Housing Limited v Durdana.  Court of Appeal, Patten, Moylan and Newey LJJ.  [2020] EWCA Civ 445, 26 March 2020

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 (PSED) and that even if the ground was made out, it was not reasonable to order possession.


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.

The Court of Appeal agreed with the judge that there had been a breach of the PSED. They held that the judge had wrongly applied the test of whether, had PSED been complied with, the same decision would have been inevitable. The correct test was not one of inevitability but whether it was ‘highly likely’ that the outcome would not have been substantially different had no breach of the duty occurred, (Aldwyck Housing Group Limited v. Forward [2019] EWCA Civ 1334, per Longmore LJ).

The possession claim has been remitted to the County Court for consideration of the issue of reasonableness.


Outcome

The appeal concerned the important point of principle about the interrelationship between the PSED and the court’s discretion to make a possession order under Ground 17.

Housing director Manjinder Kaur Atwal comments;

“The outcome is not one we hoped for.

“Those exercising their obligations as public bodies and public function landlords cannot and should not avoid their PSED duties as a failure to comply with the PSED does and should matter as it could still result in a possession claim being dismissed. Perhaps the “highly likely” test should be challenged.

“We will be appealing to take the case to the Supreme Court.”



Representation

Harrow based housing director Manjinder Kaur Atwal represented the client with Toby Vanhegan and Katie Lines of 4-5 Gray’s Inn Square counsel.

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