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Social Housing Speed Read – Can a breach of the Public Sector Equality Duty be remedied later down the line?

This week, we take a look at the recent Court of Appeal case which considers whether or not a breach of the public sector equality duty ("PSED") can be remedied later down the line in possession proceedings, and to what extent.

Metropolitan Housing Trust Ltd v TM (2021) EWCA Civ 1890

TM was a supported tenant of the registered social housing provider, Metropolitan Housing Trust Limited (“Metropolitan”), pursuant to an assured tenancy which commenced in 2014. He suffered from schizoaffective disorder and treatment-resistant paranoid schizophrenia and was housed alongside other individuals with moderate to severe mental health conditions.

TM’s disability constituted a protected characteristic under the Equality Act 2021 (the “Act”). Created under the Act, the PSED requires public bodies to have regard for advancing equality, which includes (1) removing or minimising disadvantages suffered by people due to their protected characteristics, and (2) taking steps to meet the needs of people from protected groups where these are different from the needs of other people.

TM engaged in troubling behaviour in 2018, exposing himself to a female resident and seriously assaulting a carer. Metropolitan therefore held a meeting with the support provider, Sanctuary, and the Community Mental Health Team, in which TM’s capacity was discussed and an assessment was requested. TM’s psychiatrist was contacted via email regarding capacity, however no definitive response was received.

Metropolitan subsequently served a S8 notice upon TM under Ground 14.

An Equality Act Report was then reviewed by Metropolitan which stated that three incidents in 4 years had occurred whereby TM had physically harmed another individual. It was also noted in the report that TM had said to his Community Psychiatric Nurse that “he couldn’t promise that he wouldn’t do it again as (the staff member) had it long time coming” in relation to an incident on 15 May 2018. The report went on to state:

“This indicates that (TM) was aware of his actions and he understood that what he has done was inappropriate and wrong. (TM’s) remaining on site presents a high risk to other residents, staff and any contractors attending.”

The decision to issues possession proceedings upon expiry of the notice was then made in order to protect staff and residents. Before the first hearing, however, TM’s psychiatrist provided a report stating that TM:

“continued to experience significant symptoms of schizophrenia that affected his understanding of and capacity to make decisions about legal matters; that he was not fit to instruct a solicitor as he was unable to weigh information provided to him about the court process, and had no interest in representing his interests in court; and that his taking part in the proceedings would have a negative impact on his mental state and behaviour.”

TM therefore challenged the proceedings on this basis and argued that the PSED was a continuing duty and therefore Metropolitan should have reassessed its position upon receipt of the psychiatrist’s report before continuing the claim.

The chief PSED decision-maker for Metropolitan, Mr Print, was cross-examined during proceedings and said that in light of the report, if he had to make the decision again he would not have pursued possession proceedings; he would instead have tried an alternative way of dealing with the situation if that was at all possible.  However, he also said he considered it remained a proportionate response to the two  incidents to go through with the proceedings.

The Judge agreed that the PSED is a continuing duty and that a reassessment of Metropolitan’s decision pursue possession proceedings should have occurred upon receipt of the psychiatrist’s report and thus a breach had occurred. However, he said:

“that assessment was in effect done when Mr Print gave evidence… Now we have Dr Koch’s report in the course of these proceedings, the evidence of Mr Print is that in his view it is reasonable and proportionate to pursue eviction and I agree.”

The Judge therefore granted the possession order upon the condition that it would not take effect until suitable alternative accommodation was found.

TM appealed, predominantly against the finding that the breach of the PSED had been remedied upon Mr Print giving evidence in Court. The appeal was dismissed, however, and so a second appeal brought to the Court of Appeal.

The appeal succeeded. It was accepted that Mr Print’s evidence could not stand as having remedied the breach.

The Judge then provided further comment on whether or not it was possible, in principle, to remedy an earlier breach of the PSED. He stated:

“if it became apparent at trial that there was some minor point that had been overlooked it might be possible for the decision-maker to confirm that, having taken it fully into account, it made no difference… The significant point is that although breach of the PSED can be relied on as a defence to a claim for possession, if it has been complied with, albeit belatedly, the Court is not obliged to refuse the claim for possession”.

It was also stated that “a proper PSED evaluation did not always have to pre-date the relevant decision.”

This case therefore provides further authority that the PSED is a continuing duty, and that any new information received during the course of proceedings must be considered. Further, it must be noted that an earlier breach of the duty is not an automatic defence to a possession claim – a minor breach may be overlooked if it can be demonstrated that the same would not have altered the decision, or that compliance was later met.

If you would like any more information, or would like advice as to how the proposed changes may affect your organisation, please contact John Murray or a member of our Housing Management 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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