Steven Forward v Aldwyck Housing Group Ltd

Hearing dates: 16 th July 2019

Approved Judgment

Introduction

In the courts below the Aldwyck Housing Group Ltd (whom I will call “the landlord”) admitted that the defendant Mr Steven Forward was physically disabled and that it had failed to comply with its public sector equality duty (“PSED”) under section 149 of the Equality Act 2010 before seeking and obtaining a possession order on the grounds that Mr Forward had breached his tenancy agreement and had been guilty of conduct causing a nuisance or annoyance to persons residing nearby. The main question arising on this appeal is as to the consequences of that breach of duty and, in particular, the degree to which the court should assess whether it would have made any difference if the landlord had complied with its duty.

Mr Forward's physical disability was that he had severe back, hip and knee pain on the right side of his body. Mr Forward also asserted that he was mentally disabled because he suffered depression, anxiety and had a personality disorder but the district judge was not satisfied on the evidence that Mr Forward suffered from any mental disability. That issue therefore fell out of the picture.

The landlord is a social housing association and, since it exercises public functions, comes under the duty imposed by section 149 of the Equality Act in the exercise of those functions. In broad terms this duty is to have due regard to the need to eliminate discrimination, advance equality of opportunity for disabled persons and to foster good relations between disabled and non-disabled persons. This involves having due regard to the need to remove or minimise disadvantages suffered by disabled persons, to take steps to meet their needs and to encourage them to participate in public life. Such steps include steps to take account of disabled persons' disabilities.

Section 149 of the Equality Act provides:-

“ 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 person 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 facts

These are set out in detail in the judgments of Judge Wood at Watford County Court and Cheema-Grubb J on appeal from that decision. For present circumstances they can be summarised in the following way.

In 2013 the landlord granted an assured tenancy to Mr Forward of a flat at 34 Wilmington Close, Watford. Problems began in early 2017. On 12 ^th February a visitor of Mr Forward arrived at the property late at night, banging on the door, using the buzzer, shouting and swearing, demanding to be let in and threatening violence. A week later on 19 ^th February one of Mr Forward's visitors was assaulted with some sort of instrument in the flat by another visitor Mr Dejuan Davis. In response to that assault the police attended the flat in the early hours of 20 ^th February and found five visitors, class A drugs in the form of cocaine and drug-dealing paraphernalia. Mr Davis was found to be using the property to cut drugs in preparation for sale. The police arrested three of the visitors two of whom later pleaded guilty to a charge of possessing cocaine and the other to possessing cannabis. On 28 ^th March 2017, two of Mr Forward's visitors, who were known drug users, pushed past one of Mr Forward's neighbours to force their way into the apartment block and then entered the property.

On 24 ^th February the landlord (by its housing officer Ms Anne Ronan) wrote to Mr Forward with a formal warning in relation to the reported anti-social behaviour of his visitors. On 21 ^st March Ms Ronan and Ms Sharon Savage (the landlord's area housing manager) met Mr Forward and a friend of his at the property. They asked Mr Forward if they could provide any support to help him keep people away from the property, but he did not take up that offer. They warned him that there might have to be court proceedings if there was no improvement in the situation.

On 7 ^th April the landlord served on Mr Forward a notice of intention to seek possession. Between 26 ^th April and 10 ^th May 2017 Watford Borough Council arranged for a security officer to monitor access to the block; the situation improved but attempts by suspected drug users to gain access to the property continued. There was then a meeting on 11 ^th May 2017 at Watford Council premises in relation to the implications for Mr Forward's tenancy of the notice seeking possession. This meeting was attended by Mr Forward and his daughter, Ms Savage and Ms Ronan and Mr Liam Fitzgerald, the Community Safety Co-ordinator for Watford Borough Council. Mr Fitzgerald said he would send Mr Forward the names of persons who should not be visiting him and it was made clear that if Mr Forward's association with them continued, the landlord would issue proceedings for possession. Those names and that formal warning were communicated to Mr Forward on or about 19 ^th May 2017, but the landlord continued to receive complaints in relation to the property from the neighbours.

On 23 ^rd May 2017 the police executed a warrant at the property and again found evidence of Class A drugs and drugs paraphernalia. Two days later the police obtained a closure order from Central Hertfordshire Magistrates Court which was later extended for a further 3 months. Since that date Mr Forward has had to fend for himself.

On 19 ^th July the landlord issued a claim for possession relying on grounds 12 and 14 of schedule 2 of the Housing Act 1988, namely that Mr Forward was in breach of the obligations of the tenancy agreement (in particular, causing a nuisance and using the property for illegal purposes) and that he was guilty of conduct causing or likely to cause a nuisance. The claim form was served on 16 ^th August; a defence was filed on 18 ^th September 2017 and a trial took place before Judge Wood in January 2018. In March 2018 she found the breaches of the tenancy agreement and the allegations of nuisance established and an order for possession was made on 12 ^th March 2018.

When the arrests were made on 20 ^th February 2017 the police considered that what was happening in Mr Forward's flat was typical of what they called “cuckooing” where those operating a drugs line run by mobile telephone take over the address of a vulnerable person and use it to deal in drugs. In cross-examination Ms Savage said that she knew the local police believed that Mr Forward was being exploited but she preferred the evidence of neighbours who thought that he was dealing in drugs himself.

This was of some importance because after the proceedings had begun but before trial, Ms Savage had conducted a PSED assessment on 21 ^st September 2017 but she accepted in cross-examination that it had been inadequate because, although she was aware of Mr Forward's disability, she had not obtained any medical advice about it and because she had not done the assessment with an open mind; she had not considered any alternative to the possession proceedings which were already in train and had preferred the residents' views to those of the police in relation to Mr Forward's use of drugs. The result of this was that it was common ground before both Judge Wood and Cheema-Grubb J that there had been a breach by the...