Housing Update: Steven Forward v Aldwyck Housing Group LTD (2019)
 EWHC 24 (QB)
QBD (Cheema-Grubb J) 11/01/2019
The High Court dismissed an appeal against a possession order granted by the County Court, finding that although the court had failed to properly consider matters under section 149 of the Equality Act 2010 when making a possession order on the grounds of anti-social behaviour, it had been entitled to find that the order was a proportionate means of achieving a legitimate aim. The tenant had failed to provide sufficient evidence to support his contention that his vulnerabilities, caused by physical and mental impairment, had been exploited by others to engage in anti-social behaviour.
The Public Sector Equality Act Duty (PSED) under section 149, Equality Act 2010 requires a public authority, when exercising its functions, to have due regard to the need to (a) eliminate unlawful discrimination; and (b) advance equality of opportunity, and (c) foster good relations, between people with protected characteristics and those without it. The protected characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
In terms of the application of ‘due regard’, provided the court is satisfied that there has been a rigorous consideration of the PSED, so that there has been a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
If there is a breach of the PSED, the court should consider whether the possession claim should be dismissed. The court should the approach the issue in the same way it would when considering relief in the context of judicial review (Barnsley MBC v Norton  EWCA Civ 834;  HLR 46).
The facts briefly were that the appellant, Mr Forward, lived at the property under an assured tenancy. Due to ongoing allegations of drug use and drug dealing at the property the Housing Association issued possession proceedings under Grounds 12 and 14, Schedule 2, Housing Act 1988. The appellant argued that he was vulnerable to exploitation because of physical and mental disability and had not given permission for the other people to be in his flat. The police had previously obtained a closure order in respect of the flat. They considered the appellant to be vulnerable and that his flat had been taken over by others to deal drugs, a situation known as “cuckooing”.
It was accepted by the respondent that there had been a failure to comply with the duty as they did not carry out a public sector equality duty assessment under the Equality Act 2010 s.149 prior to issuing its possession order application. An assessment was carried out prior to trial, but it was inadequate. However, the judge was not satisfied that the appellant was mentally impaired or that there was a link between his physical disability and the anti-social behaviour. She concluded that a possession order was proportionate and reasonable.
On appeal to the High Court, both parties made an application to adduce further evidence. The appellant had sought to rely on further medical evidence, including a post-judgment diagnosis of emotionally unstable personality disorder. The respondent had produced two post-trial public sector equality duty assessments justifying the possession claim. Both applications were dismissed.
Mrs Justice Cheema-Grubb DBE dismissed the appeal. It was held that the appellant had not provided sufficient support for his assertion that he had mental health difficulties so as to enable the judge to conclude that eviction should not be granted. Although the police considered him to be vulnerable to a cuckooing operation, the permitting of drug dealing from his home could have arisen from various circumstances. If mental illness was the reason for his vulnerability, rather than addiction, it was difficult to see why cogent evidence of such illness could not have been produced at trial. The appellant had not demonstrated that he was acting under a disability which was associated with the anti-social behaviour proved against him. The appellant had been aware of the necessity to provide evidence to establish that he had a mental disability, but had failed to do so, and it was not clear what the respondent could have obtained by further inquiry.
The inadequacy of the public sector equality duty assessment carried out prior to trial did not necessarily result in a successful appeal. If there had been clear evidence of disability and significant impact arising from that disability, the judge’s conclusion based on proportionality might have been different. However, the judge was entitled to have regard to substantial evidence that the appellant had been complicit in events at the flat. The respondent had engaged with the appellant and had taken steps to intervene and assist him. The judge carefully assessed the suggested alternative measures to eviction and reached rational conclusions on each one. When faced with an intransigent tenant whose behaviour caused distress to fellow residents over an extended period of time, it could not have been necessary for the respondent to have tried every option prior to seeking eviction. There was nothing to suggest that, had a proper assessment been carried out, there would have been a different conclusion.
This case once again underlines the need for social landlords to fully comply with the PSED when they make the decision to bring possession proceedings which concern vulnerable residents. It is imperative that all social landlords carry out Equality Act assessments and proportionality assessments prior to bringing proceedings. Although it was not held to be a material factor in this case it could lead to the claim for possession being dismissed.