Housing group succeeds in appeal to seek possession following PSED breach
Luton Community Housing Trust brought possession proceedings relying on Ground 17 of the Housing Act 1988.
The Court of Appeal case of Luton Community Housing Limited v Durdana  EWCA Civ 445 looks at the interrelationship between the Public Sector Equality Duty (“PSED”) and the court’s discretion to make a possession order under Ground 17 of the Housing Act 1988.
In this case, Luton Community Housing Trust (“LCH”) brought possession proceedings relying on Ground 17 of the Housing Act 1988. Ground 17 covers cases where a tenancy has been created as a result of a false statement that was knowingly made by the tenant or by someone acting on their behalf. LCH asserted that Ms Durdana made fraudulent statements to Luton Borough Council that led to them granting a tenancy to her.
His Honour Judge Bloom found that Ground 17 was indeed made out, but that LCH was in breach of the PSED, a duty under the Equality Act, to assess the needs of a tenant before seeking repossession. LCH knew about the disabilities of Ms Durdana and her daughter, and although they had undertaken a proportionality assessment, they did not apply any proper consideration to what impact those disabilities would have if the family were evicted. The circuit judge therefore dismissed the claim for possession making it clear that the breach of the PSED meant that it would not be reasonable to order possession.
On appeal by LCH, the court agreed that there had been a breach of the PSED. However, it was found that when deciding to
dismiss the possession claim because of it, the circuit judge had incorrectly applied the test of whether, had PSED been complied with, the same decision would have been inevitable. It was held that the correct test to apply was not one of inevitability but rather whether “on the facts it was highly likely that a proper PSED assessment would not have led to a different decision”. The question being asked of LCH as decision maker was, therefore, if LCH had complied with the PSED, was it highly likely, as opposed to inevitable, that it would nonetheless have pursued the possession claim? Lord Justice Patton considered that this test was satisfied and in his judgement stated “in the face of a continuing shortage of public housing, LCH is justified in operating a policy of seeking to remove those tenants who have obtained their accommodation by deception. The duties owed to other homeless applicants support and justify that policy”.
As a result of this decision the Court of Appeal remitted the case back to the county court for consideration of whether it was reasonable to order possession.
This judgment clearly represents another important decision on PSED in the area of housing law and confirms that a breach of the PSED does not automatically entitle the person impacted by the breach to relief. Although this decision will give comfort to landlords who have not complied with the PSED it is crucial that landlords do strive for compliance as much as they can.