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The High Court considered compliance with the public sector equality duty in possession proceedings

This case considers if a breach could be ‘cured’ by subsequent compliance.

In Taylor v Slough BC [2020] EWHC 3520 (Ch) the High Court considered whether a breach by a local authority of the public sector equality duty (“PSED”) imposed by s.149 of the Equality Act 2010 (“the EA 2010”) could be ‘cured’ by subsequent compliance.

Background

Ms Taylor, (“the tenant”) was a secure tenant and was diagnosed with bipolar disorder in 2011. Slough Borough Council (“the council”) became aware of this in 2012.

In 2018 a Closure Order was made following allegations of antisocial behaviour at the property. The council then served on the tenant a notice seeking possession, relying on the absolute ground for possession within s.84A of the Housing Act 1985.

The Magistrates Court then extended the Closure Order for a further three months. Following the expiration of this period, the tenant returned to the property and the council received further reports regarding antisocial behaviour. The council served a further notice seeking possession relying on arrears of rent. Both possession actions were to be heard together in May 2019.

The PSED

S.149 of the EA 2010 sets out the PSED, the general duty requiring due regard to the need to eliminate unlawful discrimination, harassment and victimisation and to advance equality of opportunity.

Following the first notice served on the tenant, the council completed an Equality Act assessment on the mistaken basis that the tenant was not disabled, which was incorrect. The council officers who completed this assessment became aware of the tenant’s disability at a later date. The council officers then gave further consideration to the tenant’s disability in their decision-making in order to have due regard to the PSED. This included but was not limited to seeking information from relevant authorities and assessing the impact of eviction on the tenant.

At trial, HHJ Clarke found that, despite the breach of the PSED during the initial assessment and the omission to consider the tenant’s disability, the PSED was satisfied as the council had since done everything that it could to avoid possession and that possession proceedings were proportionate. The tenant appealed arguing that HHJ Clarke was wrong to find that there had been no breach of the PSED.

The High Court

The tenant’s appeal was dismissed by the High Court.

It was held that whilst the council was in breach of the PSED, as the initial assessment carried out under the EA 2010 failed to acknowledge the tenant’s disability, ‘the possibility of the PSED being cured by subsequent compliance has been specifically approved by the Court of Appeal on at least three occasions’. Thus, notwithstanding the initial breach, in the circumstances of this case, the council’s subsequent actions were sufficient to cure the initial breach and acquire overall compliance with the PSED.

It was also noted that despite the council omitting to keep documentary evidence of the formal assessments that followed, this does not in itself breach the PSED as the court should reach a determination on the basis of all of the evidence and not merely the documentary evidence.

This provides landlords with further guidance relating to breaches of the PSED. In the circumstances of this case, provided that the PSED had been complied with in substance, breaches that had occurred in the earlier stages were deemed to have been cured by subsequent compliance. 

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