Public sector equality duty — the importance of reviewing action in the light of new evidence

The Court of Appeal has overturned a decision that a housing association complied with its public sector equality duty (‘PSED’) when its anti-social behaviour officer gave evidence in the witness box at trial.

TM v Metropolitan Housing Trust Limited [2021] EWCA Civ 1890 related to a claim for possession brought by Metropolitan against its tenant, TM. TM is diagnosed with schizoaffective disorder and paranoid schizophrenia. He was a tenant in mental health supported accommodation let to him by Metropolitan. Possession proceedings were issued against TM on the grounds of anti-social behaviour.

Metropolitan carried out appropriate exercises prior to issuing proceedings in satisfactory discharge of its PSED  However, shortly after issuing proceedings, they received evidence from TM’s psychiatrist that he lacked capacity to conduct litigation. No further review or assessment was carried out by Metropolitan upon receipt of this evidence.

TM (now with his father as Litigation Friend) argued at trial that the failure to carry out a further assessment meant that Metropolitan had failed to comply with its PSED. In cross-examination, Metropolitan’s anti-social behaviour officer accepted that, had he carried out the further assessment, he would not have opted to continue with the possession proceedings. However, he also stated that it was in his view reasonable and proportionate to pursue the proceedings. The judge held that by virtue of his conduct in the witness box the officer had belatedly remedied the earlier breach of the PSED, and made a possession order.

The High Court upheld the trial judge’s decision, and TM appealed to the Court of Appeal.

The Court of Appeal held that, whilst it was possible to remedy a breach of the PSED by late compliance, the officer’s reconsideration in the witness box was insufficient. Compliance with the PSED requires an ‘open-minded conscientious inquiry’, and that carrying out such an assessment under pressure in a witness box at trial was ‘self-evidently as far removed from that as one could imagine’. The possession order was set aside and the proceedings were dismissed.

The case is an important reminder to social landlords about the importance of keeping enforcement action against tenants under review as matters progress and new evidence comes to light. In circumstances where material new information is received relating to a tenant’s disability or any other protected characteristic, a proper, dispassionate and open-minded assessment should be undertaken as soon as possible. The court made specific reference to the value of good record-keeping as a demonstration of compliance with the PSED, given good record-keeping encourages decisionmakers to carry out any exercise conscientiously. With limited exceptions, the kind of assessment required cannot be done under pressure when being cross-examined in a witness box.

In helpful guidance to social landlords, the court also lamented that this was a case which ‘cried out’ for administrative review. LJ Green stated that he failed to understand why there was no internal re-review of the decision to continue with possession proceedings in the light up the updated psychiatric evidence after proceedings were issued, and that ‘an independent, objective, review by a fresh pair of eyes can bring a dispute to a swift resolution avoiding hard-fought litigation’. The consequence of the failure to carry out such a review was the waste of public funds which could have been used elsewhere. Social landlords may consider it good practice in the future to ensure that as well as carrying out a timely fresh review of any action in the light of evidence received as a case continues, that review is completed by a suitable officer who may not have been involved in the case beforehand.