Social landlords are seeing a rising number of Equality Act defences to possession proceedings. A recent Court of Appeal decision made on 29 July in Steven Forward v Aldwyck Housing Group Limited helps shift the likelihood of such defences succeeding.
The case held that a landlord could still progress with possession proceedings even if they fail to consider the public sector equality duty (PSED) under Section 149 of the Equality Act 2010 – if, on the facts, it could be shown that the decision to grant possession would not have been substantially different.
This case involved an anti-social tenant, who had numerous complaints made against him. The landlord made a claim for possession of the property after warning the tenant about the anti-social behaviour of the visitors to the property.
The landlord began possession proceedings without conducting a PSED assessment, despite the tenant having physical disabilities. The trial judge held that the tenant had breached the terms of his tenancy agreement and rejected his claim of indirect discrimination. The trial judge believed that possession of the property was a proportionate means of achieving a legitimate aim and that there was no causal link between the anti-social behaviour and the disability.
On first appeal at the High Court, the court held that even if the PSED had been considered, possession would have been granted regardless.
The case was appealed once more to the Court of Appeal who held it is not a general rule that if a landlord fails to conduct a PSED assessment, then a possession order should automatically be set aside. The court should look at the facts of the case and if it is decided that it’s highly likely the decision of the case would not have been substantially different if the PSED had been considered, then the order does not need to be set aside.
This decision does not mean that landlords can now ignore their duties under the PSED and should still carry out an assessment before issuing proceedings where they know or strongly suspect a disability exists. For example, a landlord might decide to offer or refer to support first. However, it is a significantly helpful case for social landlords undergoing possession proceedings where they have failed to do a PSED assessment if the facts support an argument that the decision would have been the same, even if they had.
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