Social Welfare Update: PSED and possession claims

Tuesday 16 July 2019

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The Appellant, Mr Patrick, was the assured tenant of the Respondent, L&Q. In October 2017, following incidences of anti-social behaviour toward one of his neighbours and toward L&Q staff, L&Q obtained an injunction against Mr Patrick under the Anti-Social, Behaviour Crime and Policing Act 2014, with a view to curbing his behaviour.

Mr Patrick breached the terms of the injunction shortly after it was granted by harassing his neighbour and so L&Q initiated committal proceedings. At a hearing in December 2017 Mr Patrick admitted, in part, the allegations against him and was sentenced to four weeks imprisonment suspended for one year.

In the meantime, L&Q had started possession proceedings against Mr Patrick and, following the admission that he had breached the injunction L&Q amended their possession claim so as to rely on the mandatory ground 7A of Part 1, Sch 2 Housing Act 1988. Permission to amend was given on 28 May 2018.

On 13 June 2018 Mr Patrick, in turn, amended his defence to the possession claim, arguing that he suffered from a mental impairment and that in seeking to secure his eviction, L&Q were discriminating against him contrary to s15 Equality Act 2010 and had acted in breach of the public sector equality duty (PSED) under s149 of that Act.

On 26 June 2018, two days before a hearing of the possession claim was due to take place, medical evidence was served by Mr Patrick’s solicitors establishing that Mr Patrick had a history of schizophrenia.

At the hearing, having considered the medical evidence and the parties pleaded cases and skeleton arguments, HHJ Saggerson took the view that the case was not ‘genuinely disputed on grounds which appear to be substantial’ and made a possession order summarily, with the date for possession postponed for the statutory maximum of six weeks to take into account Mr Patrick’s disability. In relation to the PSED he took the view that if there had been a breach, that did not prevent the court from making a possession order.

Following the making of the possession order, in September 2018, L&Q completed a written PSED assessment concluding that, having regard to the PSED and taking into account further medical evidence in relation to Mr Patrick’s diagnosis of paranoid schizophrenia and the potential impact of an eviction on him, it would be proportionate to enforce the possession order.

Mr Patrick was granted permission to appeal against the making of the possession order on the sole ground that the judge had been wrong to reject the PSED limb of the defence.

In considering this ground, Turner J gave the following guidance on ‘the factors which are likely, at least in many instances, to be the most relevant to be considered in the context of possession cases’ in discharging the PSED, while emphasising that the list of factors he provided ‘is not intended to be either comprehensive or definitive’ and that ‘judicial observations ought not to be treated as if enshrined in statute’. See [42]:

  • A public sector landlord contemplating taking or enforcing possession proceedings in circumstances in which a disabled person is liable to be affected is subject to the PSED. See Pieretti v Enfield LBC [2011] 2 All ER 642.
  • The PSED is not a duty to achieve a particular result. Rather, it is a duty to have ‘due regard’ to the need to achieve the results identified in s149 Equality Act 2010. This will require the landlord to weigh the factors relevant to promoting the PSED against countervailing factors, such as the impact of the disabled occupier’s behaviour on others. See Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141 at [31].
  • Where the information available to the landlord raises a real possibility that the occupier may be disabled, then a duty to make further inquiry arises. See Pieretti at [33] and [35].
  • The PSED must be exercised in substance, as opposed to form. It should not be reduced to a ‘tick box’ exercise. See R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at [92].
  • The PSED is a continuing duty. The proper discharge of the duty does not end at any particular stage of the decision making process (see Brown at [95]) e.g. the point at which a possession order is made. But where the PSED has been adequately considered, in the absence of a material change in circumstances, express reconsideration at a later stage will not normally be required.
  • The PSED should generally be considered before seeking and enforcing a possession order, and not as a ‘rear-guard action’. However, in cases where the landlord did not know or could not reasonably have known of the disability, then the duty will only bite at the point at which the disability becomes, or ought to have become, apparent. Where knowledge is acquired late a less formal PSED assessment may be justified, because, for example, the landlord’s options may be more limited by that stage and the reasonable expectations of other residents might have become more pressing.
  • The recording of the steps taken pursuant to the PSED will be an important evidential element in demonstrating that it has been lawfully discharged. See R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB). But, on the other hand, it is possible for a decision maker focusing conscientiously on an occupier’s disability to properly discharge the PSED without necessarily being aware the duty or its terms. See Hackney LBC v Haque [2017] EWCA Civ 4 at [47].
  • The court must be satisfied that the landlord has carried out a rigorous consideration of the PSED. But it is not for the court, once satisfied of this, to substitute its own view for that of the landlord. For example, the court should satisfy itself that the statutory criteria have been considered. But the weight to be given to the relevant factors is a matter for the landlord. See R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin).

Applying this guidance to the case in hand, the judge went on to dismiss the appeal. L&Q had been justified in adopting a less formal approach to the PSED assessment prior to the hearing of the possession claim, given the late stage at which the medical evidence had been disclosed, and had discharged the duty at appropriate stages of the process. Even if there had been a breach it had been remedied by the formal assessment that took place after the making of the possession order. And, a breach of the PSED would not have made any difference to the outcome and so the decision to seek possession would have been upheld in any event.

Comment:

The judge’s final – obiter – observation that a breach of the PSED would not have made a material difference to the outcome of the decision making process, and so would not have invalidated the decision to seek possession, is the latest judicial pronouncement in an ongoing debate as to the practical consequence of a breach of the PSED (and public law errors more generally) in the context of possession claims. The other side of the debate would be that a breach of the PSED should automatically be taken to invalidate the decision to seek possession, and should provide a complete defence to a possession claim, requiring the decision maker to start again and reconsider its position with due regard to the occupier’s disability before proceedings can be brought.

The idea that a breach of the PSED might not invalidate a decision to seek possession if compliance would not have made any difference to the outcome first found expression in a comment made by Carnwath LJ in Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834, [2012] PTSR 56 at [46]. This approach was then applied in by the High Court in Forward v Aldwyck Housing Group Limited [2019] EWHC 24 (QB), in a judgment handed down on 11 January 2019. Shortly after however, in a judgment handed down on 24 January 2019, the Court of Appeal in Powell v Dacorum BC [2019] EWCA 23 was invited to consider whether this approach was correct but declined to do so as the issue did not arise on the facts of the case. The current position would seem to be that this is remains a live issue, albeit one which will probably have to be determined by the Court of Appeal potentially in Forward which (it is understood) is currently under appeal.

One issue which may have to be considered in this context is whether s31 Senior Courts Act 1981 has any bearing on this issue. In particular s31(2A) provides that:

"(2A) The High Court –
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."

Turner J in Patrick, referred to this provision noting that it would be anomalous if ‘the effect of a non-material breach of the PSED should automatically frustrate private law claims brought by a public body but, equally automatically, be ignored entirely in the context of public law challenges’. That might seem like a fair observation. But, it should be born in mind that Parliament has specifically intervened to circumscribe the powers of the High Court in judicial review claims by means of s31(2A), which was inserted as part of a package of reforms contained in the Criminal Justice and Courts Act 2015 which were intended – in broad terms – to restrict judicial review. Having chosen not to limit the county courts powers in the same way, it might be argued that s31(2A) should not be applied by analogy to limit the powers of the county court in considering public law defences to possession claims. The High Court has always had the inherent discretion to refuse relief in circumstances where the outcome of a decision would have inevitably been the same irrespective of the public body’s error, and it seems reasonable for a similar approach should be taken by the county court, given that a the right to raise a public law defence in the county court is a substitute for judicial review. But the effect of s31(2A) is to impose a lower threshold for the refusal of relief  by the High Court and it would seem to be arguable, at the very least, that this new lower threshold should not be applied in the county court in the absence of any such legislative intervention.

Click here for the judgment: London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB)

Connor Johnston is a member of the Garden Court Chambers Housing team.

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