The importance of complying with the Public Sector Equality Duty

The recent Court of Appeal case of Metropolitan Housing Trust Ltd v TM (A Protected Party) [2021] EWCA Civ 1890 provided important guidance on the approach to the Public Sector Equality Duty (PSED) and how the breach of the PSED can be remedied.

Facts

Metropolitan Housing Trust (MHT) brought possession proceedings again TM, who was living in supported accommodation provided by themselves. TM was an adult living with schizoaffective disorder and treatment-resistant paranoid schizophrenia. He lived in one of 17 supported units with dedicated mental health support, provided by a third party care organisation.

In May 2018, TM had exposed himself to another of the residents and shortly thereafter had assaulted an employee of the care provider. Following these incidents MHT served a notice on the appellant under Section 8 of the Housing Act 1988 and issued a possession claim on Ground 14, Schedule 2 of the 1988 Act, based on the tenant’s conduct causing or likely to cause a nuisance or annoyance to the landlord, other resident or visitor.

In October 2018 after the possession claim was issued, MHT were sent an up-to-date psychiatric review, which detailed how TM continued to experience significant schizophrenia symptoms, lacked capacity and understanding of legal matters, and had no interest in representing his interests in court, and that taking part would negatively affect his mental state and behaviour.

At first instance, the judge identified five incidents that were relevant to the assessment of risk regarding Ground 14. TM argued that MHT had discriminated against him, had failed to comply with their Public Sector Equality Duty (PSED) and that it was not proportionate to make a possession order against him. The judge rejected those arguments and found that MHT had been in breach of its PSED but the MHT’s decision maker had remedied the breach in the course of giving evidence. There was then an appeal to the High Court, on the basis that the judge has incorrectly found that the breach of the PSED was rectified at trial. At the High Court, the possession order was upheld and then a further appeal was made to the Court of Appeal where the possession order was overturned as the breach was found to be significant and TM had suffered direct prejudice.

Law

The Court of Appeal held that the breach could not be remedied at trial by what was said in the witness box as the PSED requires that a proper process be carried out and it had to be done “in substance, with rigour and with an open mind”. It was held that during litigation this was unlikely to be achieved and it was clear that an assessment in a witness box is far removed from the open-minded inquiry that is required.

The approach taken by the court reaffirmed that the PSED required an assessment to be completed before a decision is made, because where compliance comes afterwards there is always a risk of confirmation bias.

The court further held, albeit the point was not strictly relevant to the appeal, that in situations where the PSED had not been complied with at the outset, compliance could still be achieved where proper consideration was given at a later stage and where there are no continuing consequences, in these situations a possession order could still be valid. The judge did make clear that this will also depend on the individual facts. What was clear in this case was that TM had suffered prejudice.

MHT was not barred from bringing a further claim on the same facts and it would not be an abuse of process if they were to carry out a proper assessment as is required by the PSED.

Comment

There are a number of key takeaways from this judgement, the most crucial being to ensure that as much information is gathered and then interrogated in the required way, and this should be done before any decision engaging the PSED is made.

It is also important to remember that the PSED is a continuing obligation and while it was not fully clear when the psychiatric report was received, it seems as though it was at least before the first possession hearing and a reassessment at that point should have been made.

Finally, even where the court overturns an order, that does not necessarily prevent further proceedings being issued where the PSED is complied with as intended and the conclusion is reached following an appropriate investigation, ideally by a fresh decision maker.

How can Birketts help?

Birketts have a specialist Housing Management Team to help our clients stay ahead. Our expert lawyers can advise on all aspects of housing and asset management from complex ASB claims, Equality Act defences, building safety issues, defending disrepair claims/EPA prosecutions, subletting/housing fraud cases, service charge disputes, s.20 consultation issues, applications to vary defective leases, to name but a few of the issues we can assist with. Our experts have decades of experience acting for Registered Providers and local authorities and offer a truly ‘one stop shop’ for the issues facing the sector. We have a dedicated and specialist team that deal with Right to Manage and enfranchisement issues.

If you have any queries regarding the content of this article or wish to discuss any issue regarding the management of your tenants or stock, please contact Clive Adams, Jonathan Hulley or any member of the Social Housing Team, to see how Birketts can help you.