Landlords in the public sector will be familiar with the public sector equality duty (PSED) as set out in s149 of the Equality Act 2010.
The recent decision of the Court of Appeal in TM (by his litigation friend, DM) v Metropolitan Thames Valley Trust Ltd [2021] EWCA Civ 1890 serves as a reminder that the PSED is an ongoing duty and decisions of landlords should be kept under review, particularly where new evidence comes to light during the course of proceedings.
The PSED requires public authorities and bodies whose functions include public functions to have due regard to the need to eliminate discrimination, harassment and victimisation and to advance equality of opportunity and foster good relations between persons with a protected characteristic (age, disability, gender reassignment, pregnancy or maternity, race, sex, sexual orientation, religion or belief) and persons who do not share that characteristic.
Where a landlord has failed to comply with the PSED, that failure may be relied on as a defence to possession proceedings and the significance of the breach is a matter for the Judge to assess.
TM was an assured tenant in supported housing. He suffered from schizoaffective disorder and treatment resistant paranoid schizophrenia.
In 2018, his landlord (MTVT) served a Notice Seeking Possession and issued proceedings under Ground 14, citing 2 incidents in which TM had exposed himself to another resident and assaulted a member of care staff. Other incidents were relied on at trial and considered by the Judge. One of those dated back to May 2016 and, since that time MTVT had been working with the local authority to find alternative accommodation for TM. Although 2 alternatives had been proposed, TM's parents did not consider them to be suitable.
The possession claim was defended on the basis that MTVT had failed to comply with the PSED, had unlawfully discriminated against TM and acted in breach of its public law obligations, and that it was not reasonable or proportionate to make an order evicting TM.
MTVT had carried out a PSED assessment prior to serving notice and issuing proceedings. That assessment concluded that TM's actions were a consequence of his disability (a protected characteristic), but that it was nonetheless reasonable and proportionate to bring proceedings, to safeguard staff and residents. The issue of capacity was raised at this juncture and an assessment was requested.
After the claim was issued, medical evidence was obtained which concluded that TM lacked capacity to conduct litigation. TMs father was appointed as his litigation friend. However, no further PSED assessment as to continuing the litigation was carried out.
The first instance Judge found that there should have been a further assessment and therefore the PSED was breached. However, he concluded that the assessment was in effect done when the relevant officer gave evidence at trial. During that evidence the officer said that if he had to make the decision today, he did not feel he would have pursued possession proceedings and would have tried an alternative way of dealing with the situation, but that it remained a proportionate response to pursue possession.
At trial, an order for possession was made on that basis, not to take effect until suitable alternative accommodation was found.
The High Court dismissed an appeal by TM, but the Court of Appeal allowed the second appeal.
It found that the failure to carry out a fresh assessment once the further medical evidence was obtained was a breach of the PSED and that breach had continued without remedy. The finding that the breach had been remedied in the witness box could not stand.
The breach was not an insignificant one, because it meant that the landlord had not considered the issue of lack of capacity. The possession order was set aside and the claim dismissed.
Whilst not strictly necessary to consider whether a PSED breach could be remedied at a later date, the Court of Appeal also considered this principle and agreed with the earlier cases which found that a breach at an early stage could be remedied later, provided the public authority has complied in substance, with rigour and with an open mind. Evidence given at trial was unlikely to meet this test because of the pressure the witness faces in relation to the success of the case and costs consequences.
