Housing Update: Powell v Dacorum BC

Powell v Dacorum BC – no breach of the PSED at the warrant stage when it was not raised in the possession proceedings
[2019] EWCA Civ 23

This case involved arguments raised at the warrant stage of alleged breach of the Public Sector Equality Duty (PSED) found in s 149 Equality Act 2010.

The facts were that a suspended possession order (SPO) was made in October 2015, apparently without contest by the tenant (and at which time the PSED was not raised, the defence cited depression and hepatitis C as a reason for possession not being reasonable only) due to both rent arrears and convictions for drug offences committed at the property. The local authority sought to enforce it due to allegations of drug dealing following a raid at the property 3 months after the making of the SPO when drug paraphernalia was found – the tenant being a habitual drug user.  The tenant applied to suspend the warrant but the Deputy District Judge dismissed that application, finding that serious drug dealing had taken place in breach of the SPO – again, PSED was not raised. The local authority had asked whether his personal circumstances had changed and nothing new was revealed until the appeal was made and then, when produced with a letter from a doctor citing mental health issues since 2015, the local authority carried out a further assessment.

The tenant was given permission to appeal on one ground which concerned the PSED and the application of the Council’s anti-social behaviour policy. The tenant contended that the warrant should have been suspended due to alleged breaches of the PSED not previously raised during the possession proceedings.  The appeal was dismissed and a further appeal was made to the Court of Appeal.

The Court of Appeal also dismissed the appeal, giving contextual guidance on the use of the duty.

The PSED imposes a duty on local authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities.

It is raised frequently alongside disability discrimination and public law defences.

The Court of Appeal referred to the case of Paragon Asra Housing Ltd v Neville [2018] EWCA Civ 1972 which also dealt with issues arising from use of the duty as a challenge at both the possession and warrant stages and found the facts of the two cases similar. Applying the preceding case, the Court commented:

There could be no reason for the Council to think that it was no longer entitled to enforce the order in accordance with its terms, whether for want of compliance with the PSED or otherwise.

The Court of Appeal found that the context of the duty was important and that its application will differ depending on the facts of the case and the function being exercised.  In this case the officer dealing with the case was aware of the duty and had made attempts to review the case before applying to enforce the SPO.  Even if it had been in breach, it remedied that breach by carrying out an assessment after receiving relevant medical information.

This case confirms that if PSED is not raised at time of the making of the possession order, the tenant will have difficulty raising PSED issues at the warrant stage unless there is a clear change in circumstances i.e. mental health issues suffered since the SPO but before applying for the warrant which the local authority knew about or ought to have known about.  Even so, such breaches can be rectified by the carrying out of a later assessment.  As always, the advice to clients has to be, always carry out Equality Act impact assessments at each stage of proceedings and be able to justify action taken based on the information available and keep good records of decision, the decision making process and make necessary referrals for support

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