The housing association granted an assured tenancy to the tenant, who was physically disabled. The tenant was given a formal warning about the anti-social behaviour of various visitors to his flat, and drugs and related paraphernalia had been found by police at the premises; however, neighbours continued to complain of unacceptable behaviour. The housing association proceeded to seek possession on the grounds that the tenant was in breach of the terms of the tenancy agreement. At the trial, it was accepted by the housing association that it had failed to comply with the public sector equality duty (“PSED”) under section 149 of the Equality Act 2010 before commencing proceedings for possession. The district judge held that the claimed breaches of the tenancy agreement were established and rejected the claim that the breach of the PSED constituted a valid defence to the claim for possession, and further held that, even if the breach had provided a defence, she would have rejected it because the possession order was a proportionate means of achieving a legitimate aim. In dismissing the tenant’s appeal the judge held that, although the district judge had erred in certain respects, even if the district judge had considered the impact of the decision to seek possession against the objectives of the PSED she would none the less have found that the possession order ought to be granted. On his further appeal, the tenant contended that, in the light of the concession that there had been no compliance with the PSED, there were only two categories of case in which a discretion to refuse relief had been exercised and, since his own case fell into neither category, the decision challenged was wrong and the order for possession ought to be quashed.
On the tenant’s appeal —
Held, appeal dismissed. There was no general rule that if there was a breach of the PSED any decision taken after such breach had to be quashed, or that there was only a narrow category of cases in which that consequence would not follow. Although major governmental decisions affecting numerous people might be liable to be quashed if the Government had not complied with the PSED, authority supporting such a conclusion was not to be applied indiscriminately to cases in which a decision was made affecting an individual tenant of a social or local authority landlord. In a typical possession action, the court, while having regard to the importance of the PSED, would also have available to it the facts of the particular dispute and be able to assess the consequence of any breach of duty more easily than in the context of a wide-ranging ministerial decision. It was not the case that the court had to quash a decision made where the PSED was not complied with, nor was the court required to act as some sort of mentor to decision-makers. In deciding the consequence of a breach of the PSED, the court had to look at the facts of the case and, if, on those facts, it was highly likely that the decision would not have been substantially different if the breach of duty had not occurred, there would be no need to quash the decision. Whereas it was right to say that the remedy of quashing a decision made without considering the PSED had only been refused when there had been subsequent compliance with the duty or a convincing undertaking that it would be complied with in future in a manner that compensated for earlier non-compliance, it could not be said that it was only in those categories that there was a discretion to refuse relief, which would be contrary to the general rule of public law that the nature of the relief granted was a matter of discretion, and the general principle applied to a defence to possession just as to a claim for judicial review. In the present case, consideration of the tenant’s disability would have made no difference, and the district judge had found that there was no viable course of action other than that adopted and, there having been no error of legal approach, there was no scope for the Court of Appeal to substitute its view for that of the lower courts (paras 21–32, 34–35, 41, 42, 43).
Toby Vanhegan, Nick Bano, and Hannah Gardiner (instructed by Arkrights Solicitors, Watford) for the tenant.
Nicholas Grundy QC and Millie Polimac (instructed by Devonshires Solicitors llp) for the housing association.