Court of Appeal allows appeal by tenant over possession claim and correction of breach of public sector equality duty

The Court of Appeal has handed down a ruling on the impact of the public sector equality duty (PSED) on a claim for possession of rented residential premises.

In Metropolitan Housing Trust Ltd v TM [2021] EWCA Civ 1890 the Court allowed an appeal by tenant TM, who brought the case through his father and litigation friend DM.

Delivering the main judgment, Lord Justice Nugee said TM had occupied a Metropolitan property since 2014 but a claim for possession had been brought against him after a series of incidents including assaults and indecent exposure.

TM has been diagnosed with schizoaffective disorder and treatment-resistant paranoid schizophrenia and lives in one of 17 housing units forming a development which provides mental health supported accommodation.

Although TM lost his case in earlier court hearings he gained permission for this appeal from Asplin LJ on the basis that the original judge had been wrong to find that, following Metropolitan's breach of the PSED, it had corrected this breach and thereby complied with the PSED, when an anti-social behaviour officer, Jeremy Print, gave evidence at the county court stage.

TM also argued that the judge had been wrong to uphold an order for possession in circumstances where Metropolitan had breached the PSED and Metropolitan's own evidence was that it would have reached a different decision if the PSED breach had not occurred. TM said that in doing so, the judge had erred in law as to the correct application of the 'highly likely test’ in s. 31(2A) of the Senior Courts Act 1981.

Nugee LJ said there was no dispute that there was a breach of the PSED in not re-assessing whether to continue with the proceedings after a report from Dr Koch, TM's psychiatrist, and this breach continued at least up until trial.

Metropolitan argued this was remedied by what Mr Print said in the witness box.

“It is immediately apparent that among other things Mr Print said that if he had to make the decision today, he did not feel he would have pursued possession proceedings but would have tried an alternative way of dealing with the situation if that was at all possible,” Nugee LJ said.

“It is difficult on the face of it to understand how in the light of this it can be maintained that the admitted breach of the PSED was remedied by him in the witness box.”

He said the PSED was a duty to carry out a proper process, and “it does not seem to me to justify a conclusion that in effect [Mr Print] went through the assessment in the witness box and thereby remedied the breach; on the contrary it strongly suggests that if Mr Print had gone through the process as and when he should done, that is after receipt of Dr Koch's report in October 2018, the outcome would have been different in that the proceedings would have been stopped, or at least put on hold, and might never have come to trial”.

Nugee LJ said expecting a witness in effect to carry out an assessment in the witness box, with all the pressures that that brings, “is self-evidently about as far removed from [correct performance of the PSED] as one could imagine”.

He added: “The finding that Metropolitan's breach of the PSED was remedied in the witness box cannot stand.”

Nugee LJ also held that the lower court had been wrong over the application of the Senior Courts Act.

“I do not see how it can be reconciled with Mr Print's evidence that if he were making the decision today he would not have reached the same decision…it flies in the face of the only record of the evidence that we have”.

TM submitted the court should not only set aside the order for possession but dismiss the claim.

Nugee LJ agreed: “There was a breach of the PSED which had not been remedied prior to trial, and for the reasons I have given was not in my view remedied at trial. That amounted to a defence. Metropolitan's claim having failed at trial, it follows that the action should be dismissed.

Agreeing with the main judgment, Green LJ commented that he rejected “any suggestion made by [Metropolitan] that a belated act of compliance expunges any harmful effects of the earlier failure.”

He explained: “An individual might, by reason of the prior failure, suffer the loss of a benefit or an entitlement. This loss does not evaporate simply because of a belated act of compliance.”

Dr Koch’s report had made it clear TM lacked capacity to participate in legal proceedings and could not give evidence about the incidents said to justify the possession order, nor give instructions to legal advisors.

“Yet, the respondent pressed forward to a trial, occurring over 12 months later, seeking possession in circumstances where the claimant did not have alternative suitable accommodation immediately available to him,” Green LJ said.

“He therefore suffered direct prejudice from the failure properly to perform the PSED which would (or should) have revealed his incapacity and the prejudice he faced in being subjected to possession proceedings.”

He added the case had been one that “cried out for administrative review”.

Green LJ said: “I fail to understand why, when Dr Koch's report was received there was no internal re-review of the decision to continue with the possession proceedings.

“The failure to have such a system in place has led in this case to the squandering of scarce resources far better deployed elsewhere.”

Lord Justice Snowden agreed with the other two judges.

Mark Smulian