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Social Welfare Update: Breach of Public Sector Equality Duty in bringing possession proceedings cured by subsequent compliance

Friday 26 February 2021

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Ms Taylor was the secure tenant of Slough Borough Council. She had been diagnosed with bipolar disorder in late 2011.

In January 2018, a closure order was imposed at her property to prohibit anti-social behaviour connected to drug use and supply. The following day, Slough issued Ms Taylor with a notice seeking possession and, in March 2018, possession proceedings were issued under the mandatory ground contained in s84A Housing Act 1985.

Prior to the issuing of proceedings an Equality Act assessment was carried out by Slough. However, the parties subsequently agreed, the assessment was flawed as the officer who completed the assessment proceeded on the basis that Ms Taylor did not have a disability. Whereas in fact the council had been made aware by that time that Ms Taylor had bi-polar disorder.

At trial, Ms Taylor sought to defend the claim arguing, among other things, that Slough had failed to discharge the public sector equality duty (PSED) under s149 Equality Act 2010. The Judge rejected this limb of the defence. Once the officer in question had become personally aware of Ms Taylor’s condition she:

"…did exercise the public sector equality duty in substance and with rigour by asking specific questions and seeking information from the various agencies that the defendant had engaged with, namely Turning Point and the Common Entry, as to what specific implications an eviction would have on this defendant given her particular vulnerabilities."

The Judge also found that that Slough had taken various other steps including supporting a referral to support services and investigating (in light of the expert evidence) what could be done to enable Ms Taylor to access supported accommodation from another provider. On this basis the Judge held that Slough had complied with the PSED.

Ms Taylor’s appeal was dismissed by the High Court. Although the Judge below had not rationalised her analysis in this way, her conclusion that Slough had discharged the PSED must be interpreted as a finding that it had cured the initial breach – in the form of the flawed March 2018 assessment – by its subsequent conduct. That a breach of the PSED could be cured by subsequent compliance had been accepted in a series of cases: Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 384; Powell v Dacorum Borough Council [2019] HLR 21; Aldwyck Housing Group Ltd v Forward [2020] 1 WLR 584. The fact that Slough had not made a record of its subsequent consideration of the PSED did not mean that it had not had due regard to the relevant matters. It was not necessary for Slough to adduce evidence ‘of a particular moment when it "sat down" and made a decision to pursue the proceedings with due regard to the PSED’. As such, the Judge had been entitled to find that Slough had complied with the duty. 

The judgment is available here.

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