Powell v Dacorum: Court of Appeal provides clarity and common sense decisionPrint publication
Housing Management & Litigation Partner Karl Anders explains why social housing landlords will welcome the Court of Appeal’s decision in the recent case of Powell v Dacorum Borough Council .
Why is this case important?
Under the public sector equality duty (PSED) , social landlords must, in the exercise of their functions, have regard (amongst other things) to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Equality Act 2010. Tenants defending possession claims or seeking to avoid enforcement action often attempt to argue that social landlords have breached the PSED.
In this case the Court of Appeal has provided clear and sensible guidance as to the application and working of the PSED in the context of possession claims.
What was the relevant background?
The facts of this case will be not dissimilar to a lot of cases that find their way to the courts. The local authority landlord sought possession for non-payment of rent, other breaches of the tenancy agreement and also due to the tenant committing drug offences at the property. In his defence the tenant argued that possession would be unreasonable because he suffered from mental and physical illnesses, but he did not refer to the PSED. In October 2015, and with legal advice, the tenant agreed to a suspended possession order (SPO) which was not to be enforced if he strictly adhered to the terms of the tenancy agreement. Later that year, police found further drugs paraphernalia at the property.
The landlord issued enforcement proceedings and the tenant applied to suspend the warrant for possession, again relying on his health problems but not mentioning the PSED.
The landlord’s anti-social behaviour officer carried out a proportionality assessment which specifically addressed the PSED. It concluded that it was necessary, proportionate and reasonable to seek possession; a deputy district judge agreed; as did a County Court judge on appeal. The tenant then appealed again, this time to the Court of Appeal.
What did the Court of Appeal decide, and why?
The sole issue before the Court of Appeal was whether, in pursuing enforcement, the landlord acted in breach of its PSED. The Court of Appeal decided that it had not breached its duty, and that the landlord was therefore entitled to recover possession.
The following key takeaways arise from the judgment:
- The PSED is an integral part of the mechanisms for ensuring fulfilment of the aims of anti-discrimination legislation. The duty is non-delegable and continuing, and rests on a public authority decision-maker personally.
- The decision-maker must be clear as to the equality implications of its decisions; and the application of the PSED will differ on a case-by-case basis, depending on both the function being exercised and the facts of the case.
- Whilst much of the case law on which the tenant sought to rely in this appeal was in the housing context, nevertheless there was a widely ranging field of factual scenarios and “[o]ne must be careful not to read the judgments … as though they were statutes“. Context is key.
- The Court of Appeal held that, given what was known to the landlord through its anti-social behaviour officer, it would be “grotesque” to say that it had failed to comply with its PSED when it decided to seek a warrant for possession. The landlord was dealing simply with a person with alleged ill-defined health problems but who (with legal advice) had agreed to an SPO.
- Attempts were then made by the officer to find out whether circumstances had changed and nothing new was revealed until new medical material was provided during the course of the application for suspension of the warrant. When that material emerged, the landlord considered proportionality, giving express attention to the PSED, and assessed the position accordingly. Therefore, even if (contrary to the Court of Appeal’s finding) the landlord had been in breach at an earlier stage, any such breach was remedied by this later proportionality assessment.
- It is open to a landlord to remedy any defect in compliance with the PSED at a later stage in proceedings.
- Tenants will therefore find it difficult to rely on the PSED as a ‘get out of eviction free’ card where the issue is not raised when an order for possession is made or unless there is a change in circumstances; and…
- …even in cases where there may be an initial PSED breach, that can be remedied by the carrying out of an appropriate assessment at any time prior to enforcement.
Local authorities and housing associations should ensure that all decision-makers are fully aware of, and understand, both anti-discrimination legislation per se and their personal, continuing duties to have due regard to relevant matters and to the equality implications of decisions on a case-by-case basis. Staff training, as well as the implementation of (and adherence to) comprehensive and effective policies and procedures are important in this context.
If you would like any further advice or assistance in relation to any of the matters raised in this briefing, please do not hesitate to contact Karl Anders or any other member of our Housing Management & Litigation Team.
  EWCA Civ 23
 See section 149 of the Equality Act 2010
 Ibid. para 44
 in accordance with Barnsley Metropolitan Borough Council v Norton  EWCA Civ 834