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Public Sector Equality Defences - Is there life in them yet?

View profile for Daniel Skinner
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Where a landlord is taking proceedings against a resident with a “protected characteristic”, two possible defences arise under the Equality Act.

The first is the discrimination defence under s15 Equality Act where it is alleged the landlord is treating the Defendant unfavourably because of something arising in consequence of the Defendant’s disability. That is often raised in cases of anti-social behaviour (ASB) where there is a mental health issue.  In those cases, the landlord can show there is no discrimination if the treatment is a proportionate means of achieving a legitimate aim. 

With most possession claims being based on Ground 14 (or Ground 2 for Secure tenants) the judge has always had to consider the reasonableness of making order. Whilst some lawyers will get excited about the difference, in practice a proportionality defence under s15 does not usually add much in serious ASB cases to the existing reasonableness issue.

The second possible defence in under the Public Sector Equality Duty (PSED) contained in the Equality Act. S149 says:

1. A public authority must, in the exercise of its functions, have due regard to the need to:

  • (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
  • (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
  • (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

2. A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection

3. Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard to the need to:

  • (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
  • (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
  • (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

4. The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include steps to take account of disabled persons' disabilities

Recently defences relying on the PSED had not met with much success in the courts. Cases such as Forward v Aldwyck Housing Group Ltd  had found that a failure to carry out a PSED assessment was not a defence if doing so would have made no material difference to the landlord’s or judge’s decision.

The issue of the PSED was considered again recently by the Court of Appeal in the case of Metropolitan Housing Trust Ltd v TM [2021] EWCA Civ 1890.

No issue was taken by Metropolitan as to whether they were subject to the PSED. That point may still be taken by a Private Registered Provider in a future case.

TM was an Assured tenant of Metropolitan in supported accommodation. He did not have the capacity to take part in legal proceedings and was represented by his father as litigation friend. He, in turn, instructed solicitors.

There had been 6 incidents of ASB by the Defendant found by the Recorder (judge) to have happened. Two were particularly serious.  The judge found that the Defendant was not to blame because of his mental health.

He made a possession order and said, “it is in everyone's best interests that [TM] leaves [the Development] and that is done in an orderly fashion”. However, the order was stayed to ensure the Defendant was rehoused in suitable accommodation.

The PSED was raised, and the judge felt that Metropolitan should have reassessed the duty when they received the report from the psychiatric expert, a Dr Koch.

The Defendant appealed unsuccessfully to the High Court. The argument had been taken by Metropolitan that in essence, they had done a fresh assessment while the ASB Officer was giving evidence.

The High Court judge accepted that argument and said there was, therefore, no continuing breach of the PSED by the time of the Recorder’s judgment. He also said that from reading the original decision “it was highly likely that Metropolitan would have reached the same decision if it had properly reconsidered the Equalities Act Report in the light of Dr Koch's assessment that TM lacked capacity”.

A second appeal was brought before the Court of Appeal. The arguments were:

  1. The judge was wrong to say that Metropolitan had complied with the PSED when the Officer gave his evidence, and
  2. The judge was wrong to grant an order where there had been a breach of the PSED, and Metropolitan’s own evidence was that it would have reached a different decision in May 2018.

The evidence had two conflicting comments about whether it was proportionate to proceed. The judge had noted that at one point in his evidence the ASB Officer had confirmed, “if he had to make the decision today, he did not feel he would have pursued possession proceedings; he would have tried an alternative way of dealing with the situation if that was at all possible”.

The Court of Appeal found that the breach of the PSED was not remedied by Mr Print in the witness box. They were critical of that process.

The tenant’s lawyers were not though successful in their arguments that a breach of the PSED could not be remedied later. That was more so in cases such as this one, where proceedings are ongoing.  Remedying a breach later does not mean that there was never a breach, but it may mean that the breach has no consequences.

The possession order was set aside.

The case thus emphasises the importance of doing a rigorous and substantial PSED assessment. That should be done in writing. It should be reviewed and updated where there is new evidence or the nature of the case changes.