Social Housing Speed Read – Breach of Public Sector Equality Duty confirmed to be cured by subsequent compliance
11th January, 2021
In Taylor v Slough BC  EWHC 3520 (Ch), the High Court have confirmed once again that breach of the Public Sector Equality Duty (PSED) can be rectified by subsequent performance of that duty.
Section 149 of the Equality Act 2010 sets out the PSED which stipulates that the public authority must, in the exercise of its functions, have due regard to eliminating unlawful discrimination, advancing equality of opportunity and fostering good relations between persons who share a protected characteristic.
In this case, Mrs Taylor was a secure Council tenant who was diagnosed with bi-polar disorder in 2011. Slough Borough Council were aware of this from 2012. On 2 January 2018, on the basis of anti-social behaviour, the Reading Magistrates Court made a Closure Order (for three months) and the Council served a notice seeking possession. An Equality Act assessment was conducted by the Housing Officer on 21 March 2018 however this did not consider Mrs Taylor’s disability. The Council served a further notice seeking possession on 24 July 2018 on the basis that the anti-social behaviour had persisted after the Closure Order ended. A possession order was made on 5 November 2018 which was set aside in March 2019. Both possession actions were subsequently heard together on 24 May 2019.
At the first instance hearing, the Council admitted that the Equality Act assessment did not consider the bi-polar diagnosis and was completed on the (mistaken) basis that Mrs Taylor had no disability. It was however accepted by the Judge that once the Council were made aware of Mrs Taylor’s diagnosis of Emotionally Unstable Personality Disorder in June 2018, they did give due consideration to the PSED. The Housing Officer reviewed the case and steps were taken by the Council in light of Mrs Taylor’s disabilities, including making a referral to intensive support services and investigating the availability of highly-supported living. The Circuit Judge therefore concluded that despite the initial breach of PSED, this had been rectified by subsequent consideration of Mrs Taylor’s disabilities.
Mrs Taylor appealed to the High Court on the grounds that the Council did breach the PSED and that this could not be subsequently rectified. The High Court however upheld the conclusion of HHJ Clarke in the County Court that the initial breach could be cured by the subsequent actions of the Council.
The High Court referred to three cases in which the Court of Appeal has held that breach of PSED was curable, namely Barnsley Metropolitan Borough Council v Norton, Powell v Dacorum Borough Council and Aldwyck Housing Group Ltd v Forward. It was noted that the Court must be mindful that after an initial breach, there is a risk that consequent compliance may be tainted by a desire not to depart from the initial decision; however this is a question of fact and does not bar the ability to subsequently cure a breach.
It is also worth noting that the Council’s omission to record the exercise of their PSED, namely in not conducting another Equality Act assessment, did not prevent the PSED breach being cured. The Court could determine whether PSED was met by considering all of the evidence and not simply the documentary evidence which might be kept.
The High Court has therefore upheld the County Court’s approach, supported by the aforementioned Court of Appeal cases, that compliance with the duty ‘should not be reduced to no more than a “tick-box” exercise’ (London & Quadrant Housing Trust v Patrick (2020) 1 P & CR 5) and should be determined on the facts, rather on the basis of adherence to a prescribed approach.
In light of the dismissal of this appeal, we can once again be reassured that a breach of PSED can be cured by subsequent action and omitting to conduct another formal review will not be fatal.
In order to ensure that possession proceedings are not challenged on the basis of PSED breach however, where an initial Equality Act assessment has been completed on the basis of incorrect mistaken or outdated information, it would be wise to conduct another assessment for the records, as the Judge’s determination of adherence to the PSED may just turn on the facts.
If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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