Registered social landlords, repossession and the Equality Act 2010

On 6 July 2021, the Supreme Court refused an appeal against a decision of the Court of Appeal. As a result, Aldwyck Housing Group Ltd (the "Landlord") was permitted to repossess a property despite failing to properly comply with the Public Sector Equality Duty (the "PSED") before issuing its claim.

The Facts

The appellant – Mr Steven Forward ("the tenant") – was a physically disabled man with severe back, hip and knee pain on the right side of his body. He was living in a flat in Watford owned by the Landlord. Throughout his tenancy, he caused a nuisance to others living in the block, being found by the police to be in the possession of cocaine and other drug dealing paraphernalia on a number of occasions.

The Landlord issued a series of warnings to the tenant. Despite the warnings, he continued to cause a nuisance, leading to the claim for possession. The claim was upheld in the Watford County Court despite counsel for the tenant making arguments that the decision to claim possession should be quashed on the basis that the Landlord had failed to adhere to its PSED (section 149 of the Equality Act 2010 (the "EA").

The PSED

The PSED provides that public authorities – including housing associations – must have due regard to the need to eliminate discrimination, advance equality of opportunity and to foster good relations between disabled and non-disabled persons. This involves having due regard to the need to remove or minimise disadvantages suffered by disabled persons, to take steps to meet their needs and to encourage them to participate in public life.

Although a PSED assessment had been conducted, it was accepted in cross-examination that it had been inadequate because, although there was an awareness of the tenant's disability, no medical evidence had been obtained on the subject, and further the assessment had not been conducted with an open mind. Additionally, an alternative to the possession proceedings (which were already underway) had not been considered as well as an undue preference for the residents' views to those of the police in relation to the tenant's use of drugs. (It was the view of the police that Mr Forward was being subject to "cuckooing" whereby drug dealers take over the home of a vulnerable person in order to use it as a base for county lines drug trafficking.)

Despite this admitted failure, both the High Court and the Court of Appeal maintained the county court's findings albeit on different bases. Most recently the Supreme Court has refused permission to appeal.

The Court of Appeal

The Court of Appeal held that both the failure to adhere to the PSED and the differing approaches in the lower courts were immaterial, agreeing with the approach taken by Cheema-Grubb J in the High Court. Following 'rigorous consideration of the impact of the decision against the objectives encapsulated in the PSED Duty', Cheema-Grubb J was satisfied that the Landlord could and would have made the same decision if now required to do a proper assessment. As such there was no basis upon which the decision should be quashed or set aside.

The Court of Appeal also emphasised the importance of giving due regard to the particular facts of each case. While there may be (limited) grounds upon which decisions should be quashed (for example where a large number of people have been affected by the failure to adhere to the PSED in a 'major governmental decision'), the Court should account for the facts. Material in this instance was that Mr Forward was an individual tenant and the consequences of the failure to carry out the assessment adequately did not impact the outcome of the decision to issue a claim for possession.

What does the mean for social landlords/housing associations?

Although the courts have found in favour of the Landlord in this instance, social landlords should remain conscious of their assessment duties under the Equality Act.

If a social landlord, housing association or Council, is in any doubt as to its fulfilment of these duties under the Equality Act, Brodies is well placed to advise. Should you wish to discuss, please do not hesitate to contact Fiona McLeod or Johanna Boyd.