Sophie Phillips discusses the application of the Public Sector Equality Duty in Housing Possession Proceedings
Park Square BarristersCase comment: Reading Borough Council v Tina Holland [2023] EWHC 1902 (Ch)
Introduction
In Reading Borough Council v Tina Holland [2023] EWHC 1902 (Ch) the High Court considered whether a local authority was in breach of the public sector equality duty by taking possession proceedings against a tenant with a disability. The tenant had a diagnosis of emotionally unstable personality disorder and was served with a notice seeking possession on anti-social behaviour grounds. The High Court found that the local authority had sufficiently considered the public sector equality duty when taking action to evict the tenant. This article explores the background of the case and the implications of the appeal decision.
The Public Sector Equality Duty (‘PSED’)
The PSED was introduced by section 149(1) of the Equality Act 2010 and requires public authorities, including local councils, to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations. ‘Due regard’ in this context means such regard as is appropriate in all of the circumstances (R (on the application of Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin)).
This duty applies when making decisions that could impact individuals’ lives, including housing possession cases. Public authorities must therefore be able to show that they have considered, at every stage, the potential discriminatory effects of pursuing possession proceedings as well as promoting equality and protecting vulnerable individuals.
Reading Borough Council v Tina Holland
Reading Borough Council (‘The Respondent’) brought possession proceedings against Tina Holland (‘The Appellant’) for breach of tenancy and anti-social behaviour grounds. The anti-social behaviour complained of was quite extensive and, prior to issuing, the Respondent made a number of applications for injunctive relief in order to abate the anti-social conduct.
The Appellant had a disability with within the meaning of Section 6 of the Equality Act 2010. Specifically, the Appellant had a diagnosis of emotionally unstable personality disorder (‘EUPD’). The Judge, Her Honour Judge Clarke, had the benefit of expert evidence in respect of this disability at the trial. This evidence was in the form of a written report and addendum report which was provided by Dr Iles, a specialist in forensic psychiatry. Dr Iles was appointed as a joint expert, and concluded that the Appellant had a disability within the meaning of Section 6 of the 2010 Act, and that there was a connection between the Appellant’s conduct and her EUPD. Though, it is important to note that the Dr Iles did not find that the Appellant’s EUPD absolved her from responsibility of her actions.
Prior to issuing proceedings for possession, the Respondent had initiated a multi-agency meeting for the purposes of discussing the Appellant’s situation. Shortly after the mulit-agency meeting the Respondent also carried out a formal Equality Act and Disability Discrimination Assessment in relation to the course of action which was proposed by the Respondent; namely serving a notice for possession proceedings.
At trial, HHJ Clarke identified the following three issues which she had to resolve:
- Had the Respondent complied with its PSED under Section 149, in relation to its decision to seek possession?
- Were the breaches of the tenancy something arising in consequence of the Respondent’s disability, within the meaning of Section 15(1)(a)?
- If so, had the Respondent proved that eviction without suitable alternative accommodation being available for the Appellant was a proportionate means of achieving a legitimate aim for the purposes of Section 15(1)(b)?
The Appellant accepted that the claim for possession constituted the pursuit of a legitimate aim, and that eviction would be proportionate if suitable alternative accommodation was available. However, it was argued that the main issue was whether eviction was proportionate, within the meaning of Section 15(1)(b), in circumstances where suitable alternative accommodation was not available.
HHJ Clarke made the following conclusions:
“110. I am satisfied after considering all the evidence and carrying out a balancing exercise that eviction of the Defendant without alternative suitable accommodation is a proportionate means of achieving what is accepted to be a legitimate aim, and maintaining her tenancy until suitable alternative accommodation can be found in the Borough of Reading would be disproportionate and cause unacceptable risk to the neighbours and others, and to property, all of which rely on the Claimant to protect them from those risks.”
As such, the Judge rejected the Appellant’s defence that the Respondent, in pursuing the possession claim, was in breach of its PSED and rejected the Appellant’s defence that the possession claim constituted unlawful discrimination. This resulted in the Judge awarding the outright possession order.
Grounds of Appeal
(i) The first ground of appeal – the effect of eviction on the Appellant bearing in mind her specific disability – analysis
As to the first limb of the first ground of appeal, put simply, the Appellant argued that the Respondent failed to consider the specific effect of homelessness on the Appellant bearing in mind her disability. It was argued that this question was only considered in generic terms and that there was not the requisite ‘sharp focus’ into the effect of eviction upon the Appellant which is required by the case law.
At trial, HHJ Clarke accepted the Respondent’s submissions that Equality Act and Disability Discrimination Assessment and the PSED should not be looked at in
isolation. Instead, compliance with PSED does not have to be achieved by a formal document but can be achieved through a comprehensive review of the history and documentation of the case. Further, it can be achieved without the employees of the public sector body understanding that they are complying with the PSED.
HHJ Clarke had concluded that the Appellant had received support from a number of support networks which were put in place and promoted by the Respondent. The documentation evidenced that this was all done with “a sharp focus on the [Appellant’s] diagnoses including EUPD and that they did so to try and improve the [Appellant’s] ability to manage her relationships with neighbours”.
On appeal, Mr Justice Johnson confirmed that there was no basis for interfering with the decision of HHJ Clarke that the Respondent did adequately consider, with the required sharp focus, the effect of eviction upon the Appellant in the light of her disability.
The second limb of the first ground of appeal referred to the issue of proportionality and the failure to consider whether there was suitable alternative accommodation which could be made available to the Appellant. Mr Justice Johnson dealt with this issue very briefly and found that HHJ Clarke had considered this question, with the required sharp focus, and that expert evidence was not required in order to answer this question.
As such, the first and second limbs of the first ground of appeal failed.
(ii) The second ground of appeal – the Respondent failed to demonstrate it complied with its PSED- analysis
The Appellant argued that the Respondent failed to consider all the options, in terms of suitable alternative accommodation and, in particular, failed to consider whether there was suitable alternative accommodation available for the Appellant in Reading. It was submitted that the PSED required the Respondent to demonstrate that there was no less drastic means of achieving its objective than eviction.
It was contended by the Respondent that the PSED was not a duty to achieve a particular result, but a duty to have regard to the need to achieve the goals identified in paragraphs (a) to (c) in Section 149(1). On this basis, it was argued that the Respondent had not failed to comply with its PSED by failing to ensure that suitable alternative accommodation would be available on eviction.
Mr Justice Johnson accepted that the Respondent’s PSED ‘was not a duty to achieve a particular result’. Instead, it is a duty to have due regard to the need to achieve the results as identified in Section 149. He found that there was no basis upon which he could or should interfere with the HHJ Clarke’s decision that she was satisfied that the Respondent had sufficiently tried to find other suitable alternative accommodation for the Appellant.
As to the second limb of the second ground of appeal, and to the issue of proportionality. The Appellant’s argument was that the trial Judge was wrong to find that eviction was proportionate, on the basis that the trial Judge herself had to consider all the options in this context and, specifically, the question of whether there was suitable alternative accommodation available to the Appellant in Reading. It was argued that the trial Judge was not able to carry out this exercise as no evidence was adduced by the Respondent in order to consider this question.
HHJ Clarke accepted the submissions on behalf of the Respondent that it could not be required to maintain the tenancy indefinitely in order to await housing in suitable accommodation which might not exist. This was particularly so given the history of the Respondent’s dealings with the Appellant. At trial, the Appellant largely accepted the allegations made against her and that she was in breach of her tenancy agreement. HHJ Clarke heard evidence that other local residents had been made to feel unsafe and insecure in their homes due to the Appellant’s conduct. This was found to be an integral part of the balancing exercise carried out by HHJ Clarke and the risks and dangers of allowing the Appellant to remain in the property.
Mr Justice Johnson, again, found that the HHJ Clarke had not been wrong in relation to the question of whether there was a less drastic option than eviction available. In the particular circumstances of this case, and on the basis of her findings on the evidence, he found that the HHJ Clarke was right to find that it was proportionate for the Appellant to be evicted.
The Appeal was dismissed in its entirety.
Implications for Public Authorities and Possession Proceedings
This decision gives a good indication of the factors which will need to be taken into consideration by public sector authorities both prior to and following issuance of possession proceedings.
The High Court has confirmed that whether or not there is suitable alternative accommodation available is an issue of proportionality which will be determined on a case by case basis. The court will often have regard to the history of the case as well as the evidence and conduct of the tenant. Where there has been consistent anti-social behaviour and a lack of engagement from the tenant or a lack of cogent evidence that they will abate this conduct then it is reasonable for the public authority to consider that alternative accommodation is not a feasible course of action. Further, where there is evidence that the conduct of the tenant is also effecting other residents then this will also go some way in showing that the public authority cannot be expected to maintain a tenancy indefinitely or await alternative suitable accommodation which may not exist.
It is also important to note that whether or not a public authority has complied with its PSED does not necessarily have to be achieved by a formal document but can instead be achieved by considering the history of the case and any support that has been provided to the tenant. It is important for public authorities to ensure that vulnerable individuals are supported through all points of their tenancy, even after possession proceedings have been issued. There must be a ‘sharp focus’ and consideration of the tenants’ vulnerabilities arising from their disabilities.
The court need only consider the public authorities actions overall. So long as public authorities are able to establish, through documentation and evidence, that they have considered the tenants vulnerabilities and offered appropriate support then they will be seen to have complied with the PSED, even if they continue to maintain possession proceedings against the vulnerable tenant. However, the level of support provided and evidence of the same will vary from case to case depending on the disability of each tenant and their requisite vulnerabilities as a result of that disability.
Sophie has developed a successful housing practice and accepts instructions in matters across the spectrum of housing law including possession proceedings, disrepair and anti-social behaviour injunctions. She acts on behalf of Registered Social Landlords, Local Authorities, private landlords and tenants.
Areas of practice:
- possession proceedings
- anti-social behaviour
- disrepair
- homelessness
- unlawful eviction
- trespass
- committals
- injunctions