London and Quadrant Housing Trust v Mr Robert Aubrey Patrick

Hearing date: 7 March 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. Mr Justice Turner

INTRODUCTION

Robert Patrick lives at Kingsley Point, Hinton Road in Herne Hill, London. He took up residence there on 2 July 2009 under an assured shorthold tenancy which automatically became an assured non-shorthold periodic tenancy one year later. The Trust is his landlord. For the sake of convenience and for ease of reference, in this judgment I will continue to refer to the appellant and the respondent as “Mr Patrick” and “the Trust” respectively.

Things did not go well. Mr Patrick was aggressive and intimidating on a number of occasions to the Trust's staff and to one neighbour in particular, Ms Marilyn Long. Accordingly, on 20 October 2017, the Trust applied to the court for an injunction under the provisions of the Anti-social Behaviour, Crime and Policing Act 2014 in the hope of putting a stop to his anti-social activities. This application was granted on 23 October 2017.

Mr Patrick lost no time in breaching the terms of the injunction. By way of example only, within two or three days of the making of the order against him, he made repeated and unfounded complaints to Ms Long that she was sexually harassing him. These accusations were wholly untrue and predictably upsetting. She felt stressed and intimidated and went to see her general practitioner for help and advice. On 2 November 2017, the Trust brought committal proceedings against Mr Patrick for breaching the terms of the injunction.

The matter came before HHJ Saggerson on 14 December 2017. At the hearing, Mr Patrick admitted, in part, the allegations against him and was duly sentenced to serve a sentence of imprisonment of four weeks suspended for one year.

This hearing had further important consequences. The Trust had already commenced parallel proceedings for possession of the premises on discretionary grounds. However, Mr Patrick's breach of the injunction brought him within the scope of ground 7A of Part 1 of Schedule 2 to the Housing Act 1988 which equipped the Trust to strengthen and supplement their existing claim for possession by amendment to include reliance upon this further and mandatory ground. Permission to amend was granted on 28 May 2018.

On 13 June 2018, Mr Patrick filed and served an amended defence in which it was pleaded, for the first time, that he suffered from a mental impairment the nature of which was not further particularised. He alleged that the Trust had unlawfully discriminated against him under section 15 of the Equality Act 2010 and had failed to comply with its Public Sector Equality Duty (“PSED”) under section 149. Despite the fact that he had been represented by counsel and solicitors throughout the earlier stages of the proceedings, there had been no previous reliance on the provisions of the 2010 Act. No medical evidence was provided in support of the contentions made by way of the new amendment.

It was not until about 5:00pm on Tuesday 26 June 2018 that Mr Patrick's solicitors first served medical evidence concerning his mental health upon the Trust's solicitors. The matter had long been listed for hearing on Thursday 28 June 2018 before HHJ Saggerson. This late evidence revealed that Mr Patrick had a history of schizophrenia. The lateness of the disclosure of Mr Patrick's medical evidence must also be seen in the context of two letters from the Trust's solicitors to Mr Patrick's solicitors dated 9 April 2018 and 8 May 2018. The Trust wished to send in contractors carry out certain works to the flat but Mr Patrick was being uncooperative and his solicitors had raised the issue of his mental health. In each of the two letters, the Trust asked for medical evidence to substantiate this claim but none was forthcoming.

At the hearing, the Judge considered the parties' pleaded cases, skeleton arguments, the appellant's medical evidence and submissions from counsel. The decision which he was called upon to make was whether or not to determine the case there and then or to give case management directions for the further procedural progress of the claim. The question he was required to resolve, pursuant to CPR 55.8, was whether the claim “is genuinely disputed on grounds which appear to be substantial”. The Judge found that there were no such substantial grounds and made an order for possession. This was suspended for six weeks to take into account Mr Patrick's disability. It is this order against which Mr Patrick now appeals.

Subsequently, one Mr Salmon on behalf of the Trust carried out the exercise of making a detailed written Public Sector Equality Duty (“PSED”) assessment dated 24 September 2018 which concluded that the Trust would be justified, even having regard to its duty under section 149, to enforce the possession order. This assessment takes into account further medical evidence supporting Mr Patrick's diagnosis of paranoid schizophrenia, identifies the potential impact of eviction and records a further incident of alleged anti-social behaviour.

The sole ground of appeal to survive the permission stage is that: “The judge was wrong in law in that he rejected the defence under section 149 of the Equality Act 2010”.

The Judge rejected the contention that the Trust had unlawfully discriminated against Mr Patrick under section 15 of the 2010 Act, finding that the claim for possession was a proportionate means of achieving a legitimate aim. Permission to appeal this finding was refused.

STATUTE LAW

Section 89 of the Housing Act 1980, in so far as is material, provides:

“ Restriction on discretion of court in making orders for possession of land.

(1) Where a court makes an order for the possession of any land, …the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.”

Section 7 of the Housing Act 1988 provides:

“ Orders for possession.

(1) The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act…

Part I of Schedule 2 lists the grounds upon which the court must make an order for possession. They include ground 7A Condition 2 which applies to cases where:

“…a court has found in relevant proceedings that the tenant…has breached a provision of an injunction under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014…”

The rationale behind the introduction of mandatory ground 7A is set out at page 63 of the Home Office publication, “ Anti-social Behaviour, Crime and Policing Act 2014: Anti-social behaviour powers Statutory guidance for frontline professionals”:

“Purpose

The absolute ground for possession was introduced to speed up the possession process in cases where anti-social behaviour or criminality has already been proven by another court. This strikes a better balance between the rights of victims and perpetrators and provides swifter relief for those victims. The absolute ground for possession is intended to be used in the most serious cases and landlords are encouraged to ensure that the ground is used selectively.”

It is not disputed that Mr Patrick fell squarely within the parameters of ground 7A. The only issue is as to whether, on this facts of this case, the application of the PSED under section 149 of the Equality Act 2010 should have been found by HHJ Saggerson to have come to his rescue and led to the giving of case management directions rather than an immediate order for possession.

Section 15 of the Equality Act 2010 provides:

“ Discrimination arising from disability

(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

Section 149 of the Equality Act 2010 provides:

“ Public sector equality duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;…

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of...