Public sector equality duty and possession orders
In the case of Forward v Aldywyck Housing Group Ltd (2019) EQHC (QB), Mr Forward was the assured tenant of Aldwyck Housing Group Limited (Aldwyck). Allegations of drug use as well as drug dealing from Mr Forward’s property were recieved by Aldwyck.
As a result, Aldwyck issued possession proceedings under Grounds 12 and 14 of Schedule 2 of the Housing Act 1988. Mr Forward argued that he was vulnerable to exploitation because he suffered from a physical and mental disability and was therefore taken advantage of by drug dealers.
Aldwyck had not carried out a public sector equality duty (PSED) assessment under section 149 of the Equality Act 2010, before it issued proceedings.
The PSED requires a public authority, when exercising its functions, to have due regard to the need to (a) eliminate unlawful discrimination; and (b) advance equality of opportunity, and (c) foster good relations, between people with protected characteristics and those without.
The protected characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
At Trial, a possession order was nevertheless granted as the Trial Judge was not satisfied that Mr Forward was under a mental impairment and there was no link between his physical disability and the anti-social behaviour.
Mr Forward appealed to the High Court, where Mrs Justice Cheema-Grubb DBE found that even if the PSED assessment had been properly conducted, possession would still have been the outcome. The failure to have due regard to the PSED in a structured way was not a material error. It would be wholly unfair and disproportionate to allow the appeal because of errors in the Trial Judge’s approach where entitlement to possession had been established.
Mr Forward appealed again to the Court of Appeal where it was held that just because a landlord failed to conduct a PSED assessment, it did not mean that a possession order should automatically be set aside. If, having carefully considered the facts of the case, a court decides that it is highly likely that the decision in the case would not have been substantially different even if a PSED had been done, then the order will not be set aside. Furthermore, it was not for the Court of Appeal to substitute its view for that of a lower court, unless there has been some error of law. “This case should not be taken as a sign to social landlords that they can avoid undertaking a PSED.” However, it does confirm the fact that technical defences which lack actual merit can and will be defeated. It is nevertheless wise for social landlords to take heed of their duties in order to avoid costly arguments in court.