Nick Bano, of the Garden Court Chambers Housing Team, instructed by Duncan Lewis Solicitors, acted for the tenant throughout and was led by Karon Monaghan QC in the Court of Appeal.
The Court of Appeal has handed down an important decision on the question of retrospective compliance with the Public Sector Equality Duty (PSED) in housing possession cases.
TM was a seriously disabled adult living in supported accommodation. He committed a number of acts of disability-related anti-social behaviour, including hitting one of his carers and exposing himself to a female resident. The landlord, having carried out a (lawful) PSED impact assessment, decided to bring possession proceedings on anti-social behaviour grounds.
TM then obtained an expert report from a psychiatrist. The expert report explained that TM lacked capacity and that he would be unable to take part in the litigation at all. Metropolitan then failed to reconsider whether to continue with the claim in the light of that report. That was a breach of the PSED.
At trial, the landlord’s decision-maker was asked whether he would have still decided to pursue TM’s eviction if that breach of the PSED had not taken place. He said that he would not have reached the same decision – that he would have tried alternatives if at all possible – but that it was nevertheless proportionate to seek TM’s eviction.
The trial judge dismissed all of the defences, including the PSED defence. He decided that – although there had been a breach of the duty – the decision-maker had ‘in effect’ complied with the PSED while giving evidence in the witness box. The trial judge made a possession order but suspended enforcement so that suitable alternative accommodation could be found.
On the first appeal to the High Court, Johnson J upheld the trial judge’s order. He held that the trial judge had decided that the landlord’s decision-maker had retrospectively complied with the PSED while he was being cross-examined and that the breach was not a particularly serious one in its context. He also dismissed a point about disability discrimination.
There were three questions before the Court of Appeal:
- Is it possible to retrospectively comply with the PSED?
- Had Metropolitan retrospectively complied in this case, while giving evidence?
- Was any breach of the PSED immaterial?
Nugee LJ’s judgment explains that – while it is possible for a public authority to ‘cure’ some breaches of the PSED by complying late – that is not what had happened in this case. The lower courts’ decisions that the decision-maker had complied in the witness box could not stand, and it is generally unlikely that evidence given in cross-examination could ever amount to retrospective compliance.
As to materiality, it was impossible to conclude that the breach had made no difference. The decision maker himself had said that he would not have made the same decision if the breach had not occurred.
Green LJ was then careful to point out the difficulties with retrospective compliance. He added three points. First, there are limits to what late compliance with the PSED can achieve, and the court will take the effects of the initial breach into account when deciding what remedy to grant. Second, he agreed that it is doubtful that a public official can properly comply with the PSED in the witness box. Third, he was critical of the landlord’s failure to carry out an administrative review at an early stage in the proceedings, which might have avoided public money being spent on a lengthy trial and two appeals.
This case serves as a useful reminder that social landlords should actively consider whether to continue proceedings against tenants in disadvantaged groups during the course of the litigation, rather than automatically pursuing claims to trial. It also reminds tenants’ representatives of the importance of the PSED as a free-standing defence.
A great deal of credit is due to TM’s family – his parents and his siblings – who have been pursuing this difficult case on his behalf since the claim was first started more than three years ago. They have shown an extraordinary level of commitment to TM’s wellbeing.