Social Housing Speed Read – The impact of the public sector equality duty on possession cases

Unsurprisingly given that social housing accommodates many of  the most vulnerable in our society, anti social behaviour is often caused, or exacerbated by mental health problems. Navigating the fine line between support and enforcement is never easy. The following case report of London and Quadrant Housing Trust v Patrick [2019] EWHC 1263 (QB) gives some comfort that the courts will be supportive of Registered Providers acting realistically.

The tenant in this case, Robert Patrick, occupied a house under an assured shorthold (starter) tenancy which automatically became an assured tenancy after one year. London and Quadrant Housing Trust were the landlord of this property. Throughout Mr Patricks’ residency his behaviour was aggressive and unpredictable on a number of occasions. To try curve this behaviour, the Trust applied for an injunction under the Anti-Social Behaviour, Crime and Policing Act 2014 which was duly granted by the court.

When the injunction failed to prevent Mr Patricks’ anti-social behaviour, the Trust brought both committal and possession proceedings. Two days before the possession proceedings, Mr Patricks’ lawyer served medical evidence on the landlord stating that Mr Patrick suffered from mental health problems, including schizophrenia. Mr Patricks’ legal team subsequently argued, unsuccessfully, that possession proceedings should not be successful as the landlord failed to comply with their public sector equality duty (PSED) under s149 Equality Act 2010.

Under s149 Equality Act 2010, a public authority in the exercise of their function must have due regard to eliminate discrimination and thereby advance equality of opportunities between persons with shared relevant protected characteristics. In cases such as this one, where there is a public sector landlord, the PSED comes into play where the landlord contemplates taking or enforcing possession proceedings in which a disabled person is affected by the decision.

In this case, the judge recognised that a range of factors come in to play in possession cases and each factor should be reviewed in turn by both the landlord and the court.

Firstly, the court set out the need for public sector landlords to carry out a sufficiently rigorous consideration of their duty to have due regard to eliminate discrimination. Where this is evident, as it was in this case as the Trust considered the medical evidence before them and deemed it proportionate to continue with the possession proceedings having considered the impact of Mr Patricks’ continued distributive behaviour, the court must not simply substitute its own views for that of the landlord. The case established that, once the court are satisfied that the public sector landlord has considered the PSED and satisfied that duty; the court must not substitute its view of how much weight the landlord should have afforded to the competing factors relevant in a PSED assessment. It is sufficient for the duty to be met by the landlord having due regard to the statutory criteria provided in s149.

Turner J residing over the case, successfully emphasised that a risk based assessment must also be carried out by public sector landlords. An assessment of whether the risk can be reduced or eliminated before proceeding to enforcing possession of the property is required. It was emphasised that whilst the landlord is not required in every case to take active steps to enquire into whether or not their tenant has a relevant disability, where there is a real possibility that such a disability exists, as it did in this case, a duty to make further enquiries arises. This factor acknowledges the difficulty and potentially discriminatory approach which could be inadvertently adopted were an imposing duty to be placed on the landlord. Were the disability of the tenant known by the landlord and an appropriate risk assessments not carried out at the time, the legality of the possession would have quite likely been questioned.

This case and others like it have shown the direction the court is taking when landlords are defending possession cases whilst faced with public sector equality duties. Despite Mr Patricks’ legal team serving medical evidence on the Trust just a couple of days before the proceedings, the landlord still evidenced a proportionate consideration of their duty under the PSED before deciding to continue to possession proceedings. It would appear that the courts are looking favourably on public sector landlords who have shown a clear recognition of their PSED when factors relating to this duty arise in possession proceedings.

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.