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Council defeats appeal over ruling that it did not breach public sector equality duty in possession case

A High Court judge has dismissed an appeal over a ruling in a housing case that there had been no breach by Slough Borough Council of the public sector equality duty.

The case of Taylor v Slough Borough Council [2020] EWHC 3520 (Ch) concerned an appeal against the order of HHJ Melissa Clarke dated 18 June 2019 requiring the appellant, Ms Taylor, to give possession of a property in Slough.

Ms Taylor had been granted an introductory tenancy of the property on 12 January 2009. It became a secure tenancy after 12 January 2010.

In November 2011 Ms Taylor was diagnosed with bipolar disorder. Slough Borough Council was aware of that from January 2012, following her interview with one of its housing officers.

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On the basis of allegations of antisocial behaviour connected to drug use and supply at and from the property, Reading Magistrates' Court made a closure order for three months on 2 January 2018.

On the same day, the council served Ms Taylor with a notice seeking possession relying on the absolute ground for possession contained in s.84A of the Housing Act 1985, based on her antisocial behaviour.

On 21 March 2018, the council's housing officer with responsibility for the area carried out an Equality Act assessment in respect of Ms Taylor.

In the High Court Mr Justice Zacaroli said it was common ground that the assessment was done on the wrong premise. The housing officer (albeit unbeknown to her personally) assessed Ms Taylor on the basis that she had no disability, whereas the council accepted not only that Ms Taylor has a disability (bipolar disorder) but that it had been made aware of it in 2012.

On 23 March 2018, the council commenced possession proceedings against Ms Taylor under s.84A. On 29 March 2018 Reading Magistrates' Court extended the closure order for a further three months.

Ms Taylor returned to the property on 2 July 2018. On 5 July 2018, in proceedings brought by Slough, Ms Taylor gave undertakings to the Court not to engage in antisocial behaviour.

During the period of the closure order, the antisocial behaviour at and from the property ceased, but complaints from neighbours of such behaviour recommenced upon Ms Taylor's return to the property.

On 24 July 2018 the council served notice on Ms Taylor seeking possession on the basis of ground 1 of Schedule 2 to the Housing Act 1985 (arrears of rent). Possession proceedings on that basis were issued on 12 September 2018 and a possession order was made at Slough County Court on 5 November 2018, in the absence of Ms Taylor. That was, however, set aside by agreement in March 2019.

Both possession actions were ordered to be heard together.

An expert psychiatrist’s diagnosis was that Ms Taylor has a personality disorder, specifically that she fulfils the diagnostic criteria for "Emotionally Unstable Personality Disorder which he concluded constituted a disability within the Equality Act 2010.

He said that “to benefit from treatment, she will need to be in highly-supported accommodation in the community and engage with a mental health team with resources to engage and manage patients with complex needs."

Following a trial on 24 May 2019, in relation to Ms Taylor’s defence based on the PSED Judge Clarke noted that although it was accepted that the housing officer had been unaware of the diagnosis of bipolar disorder at the time she produced her assessment in March 2018, once she and her manager became aware of the diagnosis in June 2018, from that time they treated the appellant as having a protected characteristic and gave due regard to the PSED in making decisions since then.

She referred to the fact that, once aware of the diagnosis, the housing officer had made enquiries of two agencies providing mental health support, relating to the questions she would ask if carrying out an Equality Act assessment.

From this the judge concluded that the housing officer had intended to carry out a further formal Equality Act assessment, although she in fact did not do so.

Judge Clarke found she was satisfied on the balance of probabilities that:

a. The housing officer was aware of her public sector equality duty in carrying out the initial impact assessment. That was apparent from the documentation.

b. The housing officer appeared to have carried out the initial Equality Act assessment based on her knowledge at the time, but in fact that knowledge was wrong, as would have been apparent from further investigations of the information held by the claimant.

c. It became apparent to the housing officer by June 2018 that her knowledge of the defendant's mental health was wrong, and that she potentially did have diagnoses the effect of which amounted to a disability.

d. The housing officer took her public sector equality duty seriously, and was aware of the fact that it was a continuing duty, by seeking to make enquiries to carry out a further assessment in light of the new knowledge that she then had.

e. The housing officer did exercise the public sector equality duty in substance and with rigour by asking specific questions and seeking information from the various agencies that the defendant had engaged with, namely the agencies Turning Point and the Common Entry, as to what specific implications an eviction would have on this defendant given her particular vulnerabilities.

Judge Clarke also noted that, in addition to the enquiries made of the two agencies, the council had taken various other steps: working closely with the police, including supporting a referral to Browns intensive support services; taking steps to investigate (in light of the expert's report) what could be done to enable the appellant to obtain a highly-supported living environment from another provider (the council not having that type of housing to offer); and visiting Ms Taylor with the police to discuss her housing needs.

The judge said that she was satisfied on the basis of all the evidence before her that the council had taken very seriously Ms Taylor's vulnerabilities, had treated her as disabled and exercised with rigour, in substance and with an open mind the duty to have regard to her disability. The judge went on to conclude that she was satisfied that the council had complied with the PSED.

Judge Clarke said that as part of her consideration of the PSED she had also considered the evidence that related to the separate but overlapping issue of discrimination. She dealt with this in the remaining part of her judgment, in which she concluded that the possession proceedings were a proportionate means of achieving a legitimate aim justifying direct and indirect discrimination. She concluded that Slough had done everything it could do.

Mr Justice Zacaroli said: “Strictly speaking, …. although the Judge did not rationalise it in this way, the Judge's conclusion that the Council had complied with the PSED must be seen as an acceptance that, notwithstanding the initial breach of the PSED, the Council's subsequent conduct from the time that it did appreciate Ms Taylor's disability meant that the initial breach was cured such that overall the Council had complied with the PSED duty.”

Counsel for the appellant submitted, first, that as a matter of law it was not possible to cure a breach of the PSED by subsequent conduct and, second, that the council's subsequent conduct in the case did not as a matter of fact cure the initial breach.

However, Mr Justice Zacaroli said he did not accept the argument that a breach of the PSED cannot be cured, at least in the circumstances of this case, by subsequent compliance with the duty. “The cases in which the importance of prospective compliance has been stressed were in the context of policies being set by public officials. As McCombe LJ noted in Powell (above), these raise different considerations to cases involving decisions to commence or pursue individual possession actions.

“In the latter context, the possibility of a breach of the PSED being cured by subsequent compliance has been specifically approved by the Court of Appeal on at least three occasions.”

The High Court judge said the authorities of Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 384, Powell v Dacorum Borough Council [2019] HLR 21 and Aldwyck Housing Group Ltd v Forward [2020] 1 WLR 584 established, in his judgment, the proposition that in possession proceedings brought by a local authority a breach of the PSED at an early stage (for example the decision to commence the proceedings) can be remedied by compliance with the PSED at a late stage (for example in deciding to continue the proceedings).

“Accordingly, I reject the contention that the Judge was wrong as a matter of law to conclude that there had overall been compliance by the Council with the PSED notwithstanding the original Equality Act assessment had been undertaken without complying with the PSED.”

He added: “That is not to say that the fact that the PSED was not complied with at the earlier stage is irrelevant to the question of later compliance. It is always necessary to find that the public authority has complied in substance, with rigour and with an open mind with the PSED. Where a public authority has commenced proceedings without complying with the PSED, it is important to guard against the risk that its subsequent purported compliance when deciding to continue the proceedings was tainted by the incentive not to depart from a decision already made. That, however, is relevant to the question of fact – whether it has complied with the PSED in the particular circumstances – and is not a bar to it curing the breach as a matter of law.”

Mr Justice Zacaroli said that the submissions on behalf of the appellant did not come close to establishing that Judge Clarke's finding of fact that, on the totality of the evidence, Slough had complied with the PSED in making its decisions since June 2018 was unsupported by the evidence or was one which no reasonable judge could have reached.

As counsel for Slough had pointed out, he said, the specific aspect of the PSED upon which the appellant relied related to the need to take steps to meet the needs of Ms Taylor in the light of her disability. “The evidence relied on by the Judge….demonstrate that the Council did just that.”

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