Mr Steven Forward v Aldwyck Housing Group Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cheema-Grubb DBE |
| Judgment Date | 11 January 2019 |
| Neutral Citation | [2019] EWHC 24 (QB) |
| Docket Number | Case No: QB/2018/0075 |
| Court | Queen's Bench Division |
| Date | 11 January 2019 |
[2019] EWHC 24 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Cheema-Grubb DBE
Case No: QB/2018/0075
Mr Toby Vanhegan Mr Nick Bano Ms Hannah Gardiner (instructed by Arkrights Solicitors) for the Appellant
Mr Ben Maltz (instructed by Devonshires Solicitors) for the Respondent
Hearing dates: 11 October 2018
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.
Aldwyck Housing Group Limited (Aldwyck) is a housing association. Stephen Forward was one of its tenants under an assured tenancy. This is an appeal against a possession order made by Judge Wood at Watford County Court on 12 March 2018. The only ground of appeal is that the judge was wrong to have rejected a defence to the possession claim based upon the public sector equality duty in section 149 of the Equality Act 2010 (“PSED”). Which provides
“s.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—
age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.
(8) A reference to conduct that is prohibited by or under this Act includes a reference to—
(a) a breach of an equality clause or rule;
(b) a breach of a non-discrimination rule.”
The act defines the protected characteristic of disability in section 6.
“6. Disability
A person (P) has a disability if –
P has a physical or mental impairment, and
The impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”
By s.136 of the act, if there are facts from which the court could decide, in the absence of any other explanation, that the provision has been contravened, the burden shifts to show that this did not happen.
Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 15 is the leading case on disability discrimination. It mandates a four-stage approach which applies (assuming that there is a disability within the meaning of the act): what are the aims or objectives in taking the action of securing eviction; is there a rational connection between the objectives and the eviction; is the eviction no more than is necessary to accomplish the objectives and is the eviction proportionate in the wider sense, that is striking a fair balance between the advantage of achieving the objective and the disadvantage of eviction to a disabled person?
The law relating to s.149 is well established. In Bracking v Secretary of State for Work and Pensions [2013] EWCA 1345 the court considered submissions focussing on the application of the PSED in the context of a government decision to close the Independent Living Fund which aimed to combat social exclusion on the grounds of disability. At paragraph 26 the court reviewed authorities on relevant duties and requirements placed on public authorities. A useful summary of the principles was also provided by Simler J. at paragraph 54 of Blake & others v London Borough of Waltham Forest [2014] EWHC 1027 (Admin).
Whenever the s.149 duty arises Barnsley MBC v Norton [2011] HLR 46 is authority for the proposition that in seeking a possession order it is necessary to take steps to have such regard to the tenant's disability as is appropriate in all the circumstances. What is appropriate must depend, amongst other things, on the evidence before the public authority (and the court) of the degree of both the disability and the likely impact of the granting and enforcement of a possession order.
Background facts
The facts are set out in the reserved judgment promulgated by Judge Wood on 8 March 2018 and are taken mainly from that source. The possession order relates to 34 Wilmington Close, Watford let to the appellant under an assured tenancy which began on 8 November 2013. The present notice seeking possession was served on 7 April 2017. By claim issued on 19 July 2017, possession was sought on grounds 12 and 14 Schedule 2 Housing Act 1988. A possession order may be granted if such grounds are proved.
In a witness statement dated 1 May 2015 prepared for previous proceedings to set aside a possession order, the appellant referred to severe back, hip and knee pain but not to any mental health issues. By the time of the trial the appellant's GP had made an urgent referral to the community mental health team and it was asserted on his behalf that mental ill-health had had a ‘substantial and long-term adverse effect on his ability to carry out normal day-to-day activities: in this case refusing admission to drug users, controlling the behaviour of his visitors, and safely using his home.’
The predicate circumstances were that the appellant himself and by visitors to his home had engaged in nuisance and anti-social behaviour. A schedule of allegations was relied on. The appellant agreed that he had been a class A drug user consuming heroin and crack cocaine at his flat but, with one exception, denied that he had misbehaved, as alleged in the schedule. As to the allegations about the behaviour of others associated with his flat, but, he said, not there with his permission, he claimed that he was vulnerable to exploitation by reason of physical and mental disability. These problems arise from a degenerated disc resulting in severe pain and mobility difficulties as well as depression, anxiety and a personality disorder. He was able to rely on evidence from two PCs Heaney and Neal who expressed their opinion that the appellant and his flat had been used by others for drug dealing. The appellant thus disassociated himself from the antisocial behaviour associated with his flat and also raised defences based on disability discrimination, indirect discrimination and breach of PSED.
The relevant defence, for the purposes of this judgment, was that alleged anti-social behaviour at or connected to his flat, must have been a consequence of his mental impairment. The appellant being a disabled person under the act, it was necessary for the respondent to have regard to the PSED in deciding whether to seek a possession order. Such regard required more than lip-service.
It is not necessary to summarise the litigation history in this judgment. Prior to the possession proceedings the police had obtained a closure order following the execution of a warrant at the flat on 23 May 2017. Amongst the police evidence in support of that application were statements from PC Andrew Heaney in which he described being called to an incident in which a man was allegedly hit with a metal baseball bat at the appellant's flat. The officer expressed his opinion that the appellant was a vulnerable man who has been known to have been taken advantage of. When officers arrived in the early hours of 20 February 2017 five other people were in the flat which had signs of class A drug use and dealing. A number of arrests were made. The appellant's car was seen bearing damage. The police considered what was happening at the appellant's flat to be typical of cuckooing (where those operating a drugs line run by mobile telephone take over the address of a vulnerable person and use it to deal drugs.)
No Equality Act assessor was appointed before the trial was heard. No PSED assessment was carried out prior to the issuing of the notice but one was prepared by the time of the trial. The author of the assessment was cross-examined. By the closing submissions there was common ground that there had been a failure to have due regard to the respondent's PSED. Nonetheless the respondent continued to seek possession on the...
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