Social Welfare Update: PSED and possession proceedings

Wednesday 23 October 2019

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Aldwyck sought possession of Mr Forward’s home under grounds 12 and 14 Part 2, Schedule 2 Housing Act 1988 relying on allegations of nuisance and anti-social behaviour. It was said that he had used drugs within the property and allowed others to use and deal drugs. Mr Forward accepted that he had used drugs within the property but argued that he had been exploited by others who had used the property without his permission, and that he was vulnerable to such exploitation as a result of physical and mental disability comprising of severe pain arising from a degenerated disc, mobility problems as well as depression, anxiety and a personality disorder. Relying on these matters he raised defences of disability discrimination and breach of PSED. No PSED assessment was carried out prior to the issuing of the notice seeking possession.

An assessment was carried out by the time of the trial but, by the end of the trial (following cross-examination of Aldwyck’s witnesses) it was common ground that Aldwyck had not discharged the PSED. However, Aldwyck’s position was that the breach was immaterial as there were no other viable options available and possession was the only proportionate response. At first instance the judge granted an outright possession.

Mr Forward appealed on the basis that the judge had erred in relation to the PSED issues. Cheema-Grubb J held that the discharge of the PSED should not be conflated with the issue of whether eviction was proportionate (which may arise in the context of a disability discrimination defence). She observed that the PSED may involve a duty of inquiry and that:

"There can be no question that a simple proportionality assessment is not what the PSED requires. A rigorous consideration of the impact of the decision to commence eviction proceedings, against the equality objectives encapsulated in the PSED is required. It must be done with an open mind and not as a defensive 'sweep - up'. This consideration must itself be set in the context of promoting the statutory objectives."

Nevertheless, she went on to dismiss the appeal owing to the ‘inescapable fact’ that the appellant did not provide sufficient evidence to establish that he had ‘mental health difficulties to such degree as to enable the judge to conclude that the eviction should not be granted against him’ and that there was nothing in the material such as to suggest that a proper PSED assessment would have led to a different decision on the part of Aldwyck. 

The Court of Appeal dismissed Mr Forward’s second appeal. There was no rule of law that a court was bound to refuse to grant possession in any case where there had been a breach of the PSED. It would be inappropriate to refuse relief in circumstances where ‘there was only one answer to the claim for possession. See [32]. And Cheema-Grubb J had been entitled to find that this was such a case. 

The court did not take any issue with Cheema-Grubb J’s analysis of the requirements of a PSED assessment in the possession context or her conclusion that the PSED, in such a context, may give rise to a duty of inquiry.

The full judgment is available here: Forward v Aldwyck Housing Group Limited [2019] EWCA Civ 1334

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