2020 EWCA Civ 445 26 March 2020

Our recent success in the Court of Appeal on behalf of Luton Community Housing should not be under-estimated.  The Court of Appeal held that a breach of the public sector equality duty (PSED) should not be a bar for a claim for possession where it was highly likely that even had the landlord complied with the PSED, it would have still decided to seek possession.  In this particular case the Court remitted the case back to the County Court Judge to consider whether it was reasonable to make an Order for possession.

A claim for possession was brought by Luton Community Housing Trust (LCH) against Ms Durdana pursuant to Ground 17 of Schedule 2 to the Housing Act 1988.  This was on the basis that LCH had been induced to grant the tenancy by false statements made by Ms Durdana when she applied for housing to Luton Borough Council.  The Judge at first instance found that Ground 17 had been made out but due to breaches of PSED, dismissed the claim for possession.  The Judge found there was a breach of PSED because although LCH knew about the disabilities of Ms Durdana and her daughter and had undertaken a proportionality assessment, it had not properly considered the impact of those disabilities if the family were evicted.  Given the Judge’s findings, she did not consider the question of reasonableness and found in the alternative that a breach of the PSED meant that it would not be reasonable to order possession in any event.

LCH appealed to the Court of Appeal who agreed that there had been a breach of the PSED.  However, they also decided that when deciding to dismiss the possession claim due to the breach of PSED, the Judge had wrongly applied the test of whether, had PSED been complied with, that the same decision would have been inevitable.  According to the Court of Appeal, the test was whether it was highly likely that the outcome would not have been substantially different had no breach of the duty occurred.  The Court held that the test was satisfied on the facts and given the shortage of public housing, LCH was justified in operating a policy of obtaining possession against tenants who had obtained their accommodation by deception. The duties owed to other homeless applicants supported and justified that policy.  The Court of Appeal remitted the claim to the County Court for consideration by the Judge of the issue of reasonableness.  Ms Durdana is applying to the Supreme Court for permission to appeal, the Court of Appeal having refused to give permission.

Subject to any successful appeal to the Supreme Court, this case will be an important precedent for all social landlords where issues relating to PSED are raised by the tenant.

Perrin Myddelton acted for Luton Community Housing in this matter and instructed Stephanie Lovegrove and Jonathan Manning of 4-5 Gray’s Inn Square as Counsel.