Luton Community Housing Ltd v Nargish Durdana
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Moylan,Lord Justice Newey |
| Judgment Date | 26 March 2020 |
| Neutral Citation | [2020] EWCA Civ 445 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2019/1100 |
| Date | 26 March 2020 |
[2020] EWCA Civ 445
Lord Justice Patten
Lord Justice Moylan
and
Lord Justice Newey
Case No: B2/2019/1100
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CLERKENWELL AND
SHOREDITCH
HER HONOUR JUDGE BLOOM
D00LU819
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jonathan Manning and Ms Stephanie Lovegrove (instructed by Perrin Myddleton) for the Appellant
Mr Toby Vanhegan and Ms Katie Lines (instructed by Duncan Lewis) for the Respondent
Ms Shu Shin Luh (instructed by The Equality and Human Rights Commission) for the Intervener
Hearing dates: 4 and 5 February 2020
Approved Judgment
This is an appeal by Luton Community Housing Limited (“LCH”), the claimant in these proceedings, against an order of HH Judge Bloom dismissing its claim for possession of premises at 3 Griggs Gardens, Luton (“the Premises”). Possession was sought in reliance on ground 17 of Schedule 2 to the Housing Act 1988 (“HA 1988”) which permits the Court to order possession where the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant or someone acting at the tenant's instigation. The ground is discretionary so that, even if made out, the Court must then decide whether it is reasonable to make the order: see s.7(4) HA 1988.
The respondent tenant, Ms Durdana, and her husband are former employees of Luton Borough Council (“the Council”). They have two children, the youngest of whom is now three years old. I shall call her “A”. She suffers from cerebral palsy. It is also common ground that Ms Durdana suffers from PTSD as a result of the trauma associated with A's birth.
In 2009 the respondent applied to the Council for homelessness assistance. The main housing providers in Bedfordshire operate a joint allocations policy which uses a banding system to assess housing need. This requires applicants for housing assistance to complete the Bedfordshire Housing Register Application form (“the BHRA form”) in which details of their current housing situation and means must be provided.
In March 2013 the Council nominated the respondent to LCH for an allocation of accommodation at the Premises. At the time both the respondent and her husband worked for the Council. She completed a pre-allocation visit form stating that since 2009 her address had been 41 Maidenhall Road, Luton. In June 2013 both the respondent and her husband completed the BHRA form and stated falsely that their current address was 41 Maidenhall Road; that the respondent's only bank account had a credit balance of £1,000; that she was living with her parents and had been asked to leave due to overcrowding; and that she had lived at 34 Highbury Road, Luton from September 2005 until 2009 and then at 41 Maidenhall Road since that date. LCH granted the respondent an assured shorthold tenancy of the Premises commencing on 5 August 2013.
In fact, at the time when both the visit form and the BHRA form were completed, the respondent, her husband and children lived in a ground floor flat at 425 Dunstable Road, Luton under an assured shorthold tenancy. They had also rented another property in Maryport Road, Luton between September 2001 and March 2012. The respondent's husband had another bank account into which he had been paying a second income. The combined annual income of the respondent's household amounted to £70,734.40. The credit balance in an account of hers was more than £6,000.
In March 2017 the respondent accepted a caution in relation to three offences of dishonesty arising from the false information contained in the application forms. Her husband pleaded guilty at Luton Crown Court to the offence of providing false information in order to obtain housing. Both have been dismissed by the Council.
On 17 May 2017 LCH served a notice seeking possession (“NOSP”) and then commenced proceedings for possession relying on ground 17. The respondent denied all but one of the false statements relied on but accepted that she had made a false statement about never having had any legal or financial interest in rented property. It was therefore common ground that ground 17 was made out. But she contended that it was not reasonable for the Court to make an order for possession having regard to the effect which a possession order would have on both her and her daughter. She also alleged that LCH had not performed its duties under s.149 of the Equality Act 2010 by properly considering in advance the impact on the respondent and A of seeking and obtaining possession of the Premises.
At the trial the judge found that the respondent had made false statements both as to her accommodation and as to her means and savings. She rejected the respondent's evidence that she had forgotten about the £6,000 held in one of her accounts. She also rejected the respondent's case that the Council and LCH had not been induced by the false statements to grant the tenancy. But she was satisfied that the appellant was in breach of the Public Sector Equality Duty (“PSED”). For this reason the claim, she held, must be dismissed. In these circumstances, it was not strictly necessary to consider whether the claim should also fail because it was not reasonable to make the possession order. But the judge indicated that in her view the fact of the breach of the PSED did make it unreasonable to order possession because it was at least a possibility that on a proper consideration by the claimant of all relevant factors the possession proceedings might not have gone ahead. The judge did not, however, attempt to carry out that assessment herself.
LCH appeals against the judge's order on three grounds, all of which relate to her dismissal of the possession claim for non-compliance with the PSED. The respondent has cross-appealed on the issue of inducement but this has not been pursued. Prior to the hearing we gave permission to the Equality and Human Rights Commission to intervene, both orally and in writing, and Ms Shu Shin Luh has appeared on its behalf. Before I come to s.149 and the issues which arise in this case, it is useful to summarise what, on the judge's findings, actually happened.
The NOSP which was served on 17 May 2017 had been prepared by Ms Zoe Wilson, a customer relations manager with LCH. She had worked for LCH since 2016 but had not been involved in the decision to grant the tenancy. She made a witness statement and also gave live evidence. In her witness statement she said that LCH had not been made aware of either the respondent's or her daughter's condition during the tenancy but that, even in the light of those conditions, it was still considered proportionate and reasonable to seek a possession order because the false information provided in the application forms had misled LCH and had prevented a more needy and deserving applicant from being granted a tenancy of the Premises for which they were eligible. The stock of available social housing is very limited and it would be unfair for the respondent to be permitted to benefit from her dishonest conduct.
To support its case that it had complied with the PSED by carrying out an Equality Act assessment, LCH relied on a two-page “Equality Act Review” document signed by Ms Wilson on 20 September 2018. This therefore post-dates the commencement of the possession proceedings. Ms Wilson explained to the judge that she had prepared the document after consulting a solicitor who told her what to look at. She had no previous experience of dealing with Equality Act assessments; did not know what s.149 provided or what the PSED comprised of; and had not previously considered the PSED in relation to these proceedings.
The review document sets out six questions and a conclusion. The first paragraph identifies the nature of the disabilities suffered by the respondent and her daughter but with no detail as to how they impact on them. The evidence of Ms Durdana in her witness statement was that the right side of I body is weak and that she cannot use her right hand. The doctors' reports which she produced and relied on at trial indicate that she often falls down, has some difficulties speaking but is otherwise generally fit and well. She is, of course, still a small child. The report of Dr Korzinski also deals with the respondent's disability caused by PTSD. He says that the threat of homelessness has placed the respondent's marriage under extreme duress; that her condition and ability to cope is likely to deteriorate; that she has not yet completed her treatment for PTSD and that the treatment cannot be completed whilst the conditions of stress and instability he describes continue.
In one of the reports there is mention of the Premises being purpose-built to cater for A's disabilities. But Mr Manning has told us that this is not correct. The Premises have not been specially built or adapted for use by a disabled child and LCH was not asked to provide such accommodation.
Ms Wilson accepted in cross-examination that she did not know what the effect of A's disability was on her day-to-day living or what impact their eviction would have on either A or her mother. This is evident from paragraph 2 of the review document. Under the heading “What issues are arising as a consequence of the tenant's disability?” Ms Wilson has summarised the circumstances in which the respondent and her family came to be granted the tenancy but says nothing about the effect of an eviction on their disabilities.
Paragraph 3 recognised eviction as “unfavourable treatment” and the review document then turns to consider whether LCH is pursuing a legitimate aim in seeking an order for possession; whether the unfavourable treatment is rationally connected to the legitimate aim; and whether eviction...
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