Metropolitan Housing Trust Ltd v TM (A protected party, by his litigation friend DM)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee,Lord Justice Snowden,Lord Justice Green |
| Judgment Date | 20 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1890 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2020-000077 |
[2021] EWCA Civ 1890
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE JOHNSON
[2020] EWHC 311 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Green
Lord Justice Nugee
and
Lord Justice Snowden
Case No: CA-2020-000077
Karon Monaghan QC and Nick Bano (instructed by Duncan Lewis Solicitors) for the Appellant
Andrew Lane and Liam Varnam (instructed by the Respondent's in-house legal team) for the Respondent
Hearing date: 4 November 2021
Approved Judgment
Introduction
This second appeal arises from a claim for possession of rented residential premises and concerns the impact on such a claim of the public sector equality duty ( “the PSED”), set out in s. 149 of the Equality Act 2010 ( “ EA 2010”).
The respondent, Metropolitan Housing Trust Limited ( “Metropolitan”), is a registered provider of social housing and the freehold owner of the unit of supported housing accommodation which the appellant, TM, has occupied since February 2014 ( “the Property”). TM does not have capacity to conduct litigation, and therefore the proceedings, both in this Court and in the Courts below, have been conducted on his behalf by his father and litigation friend, DM.
Metropolitan brought a claim against TM for possession of the Property in the County Court. The claim was heard by Mr Recorder Hodge Malek QC ( “the Recorder”), sitting in the County Court at Cambridge, over three days from 9 to 11 September 2019. He gave a detailed oral judgment on 12 September 2019 upholding Metropolitan's claim for possession and by his Order dated 13 September 2019 granted possession of the Property, but stayed enforcement pending a further hearing, his intention being that TM should not be evicted without suitable alternative accommodation.
The Recorder refused TM permission to appeal but TM was granted permission by Eady J. The appeal was heard by Johnson J ( “the Judge”). He gave judgment on 30 January 2020 at [2020] EWHC 311 (QB) dismissing the appeal, which was given effect to by his Order dated 31 January 2020.
Permission for a second appeal was given by Asplin LJ on 9 March 2021.
The PSED
It is convenient to set out the text of s. 149 EA 2010 at the outset. It provides, so far as material, as follows:
“ 149 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;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(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 persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations 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) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—
…
disability;
…”
Background
TM is an adult who is diagnosed with schizoaffective disorder and treatment-resistant paranoid schizophrenia. TM has occupied the Property under a supported living arrangement since February 2014. Although he occupied under an agreement termed a License Agreement, Metropolitan accepted that it created an assured tenancy under the Housing Act 1988 ( “HA 1988”). The Property is one of 17 housing units forming a development which provides mental health supported accommodation for individuals with moderate to severe mental difficulties ( “the Development”).
Care services were initially provided by Metropolitan itself. In 2017 however the local authority re-tendered the care contract and awarded it to Sanctuary Supported Living ( “Sanctuary”).
On 15 May 2018 TM assaulted an employee of Sanctuary working at the Development by hitting him on the side of the face and jaw. This incident was admitted in the Defence. The Recorder described it as a very serious assault: the employee was off work for 6 weeks and had a continuing ache in his jaw at trial (judgment at [B48]–[B49] 1). It occurred wholly out of the blue and led to Sanctuary withdrawing support ([B27(4)].
That came shortly after another incident on 5 May 2018 when TM exposed himself to a female resident of the Development. This was not admitted in the Defence but was recorded on CCTV and not disputed at trial, albeit the Recorder found that it was very brief and not of a sexual nature, and said that he could exclude the possibility for current purposes of a repetition [B45].
On the basis of those two incidents on 1 June 2018 Metropolitan served a notice on TM as required by s. 8 HA 1988 as a prelude to taking proceedings for possession, and on 12 September 2018 issued a claim in the County Court for possession of the Property, relying on Ground 14 in sch 2 HA 1988 ( “Ground 14”). Ground 14 is one of the discretionary grounds in Part II of sch 2, which means that the Court may, if satisfied that the ground is established, make an order for possession if it considers it reasonable to do so: s. 7(4) HA 1988. Ground 14, so far as relevant, is in the following terms:
“The tenant or a person residing in or visiting the dwelling-house—
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing; visiting or otherwise engaging in a lawful activity in the locality,
(aa) has been guilty of conduct causing or likely to cause a nuisance or annoyance to the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord's housing management functions, and that is directly or indirectly related to or affects those functions…”
Metropolitan's particulars of claim relied on the two specific incidents referred to above (assault on 15 May 2018 and exposure on 5 May 2018).
At trial Metropolitan sought to rely on a number of other incidents involving TM dating back to 2013 and continuing up to August 2019 (11 in all, including the two pleaded ones). There was a dispute whether the Recorder could take account of these incidents (not pleaded in the Particulars of Claim although there was reference to some of them in the Reply), but in his judgment he held that since the duty of the Court in considering reasonableness was to take into account all relevant circumstances ( Cumming v Danson [1942] 2 AER 653), he did need to deal with the question whether the other incidents could be admitted or relied upon in assessing the risk of harm to TM himself and to
others in continuing to reside at the Development, and that they could provide the context as to whether the two pleaded incidents were one-off or formed a more disturbing pattern whereby the risk of harm was serious [A11]–[A12]. He made the point (at [A25]) that in every incident he had looked at:“there is absolutely no blame at all on [TM]. These are the consequences of his illness for which he requires help from everyone concerned.”
In the event in addition to the two pleaded incidents, he found three prior incidents, and one subsequent incident, to have taken place, and to be relevant to his assessment of risk. They were as follows:
(1) In December 2014 TM was abusive to, and kicked out at, a gasman or heating engineer who was attending to carry out some work. There was no physical injury but the gasman was fearful for his own safety [B37].
(2) In May 2016 TM assaulted a member of staff at the Development, throwing a punch towards his chest, jabbing him in the stomach and throwing another punch at his face. The member of staff managed to avoid the punches, but the Recorder described this as a really serious matter, and disturbing; the member of staff was lucky not to be physically harmed and was very scared [B39].
(3) In 2017 TM hit his father. His father described it as a restrained blow, but the Recorder said he did not regard it as minor as he had hit his own father, and although understandable, illustrated the risk he was...
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