ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
THE HONOURABLE MRS JUSTICE CHEEMA-GRUBB DBE
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE BEAN
THE RIGHT HONOURABLE LORD JUSTICE MOYLAN
| STEVEN FORWARD
|- and -
|ALDWYCK HOUSING GROUP LIMITED
Mr Nicholas Grundy QC & Ms Millie Polimac (instructed by Devonshires Solicitors LLP) for the Respondent
Hearing dates: 16th July 2019
Crown Copyright ©
Lord Justice Longmore:
"149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to –
a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –
a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
4) The steps involved in meeting the needs of disabled person that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –
a) tackle prejudice, and
b) promote understanding.
6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
7) The relevant protected characteristics are –
"In my judgment therefore, whilst of course Judge Wood did not carry out a structured enquiry, believing that it was unnecessary, her judgment shows that she regarded the enforcement of a possession order as a proportionate means of achieving a legitimate aim. She had to consider the reasonableness of permitting the order, and enforcement if necessary in due course. If she had applied her mind to the broader considerations of s.149 Equality Act she would inevitably have come to the same answer. The failure to have due regard to the important matters set out in s.149 in the structured way required by the legislation was not a material error in this case. Looked at from the other end of these proceedings, it would be wholly unfair and disproportionate for me to allow this appeal because of the errors in Judge Wood's approach when the entitlement of the respondent to seek eviction and the reasonableness of making the order sought, have already been clearly established on the facts of this case. For these reasons I conclude that there is no merit in the appeal and I dismiss it."
1) once it was admitted that a person under the PSED had not complied with its duty, there was in principle no room for a court to exercise its discretion to grant relief;
2) there were only two categories of case in which a discretion to refuse relief had been exercised:
a) cases in which there had been a subsequent compliance with the duty in that particular case;
b) cases in which it was clear that future compliance would compensate for the prior non-compliance;
3) those categories of cases should not be extended and, in a case in which the decision-maker cannot say that he has remedied the breach by subsequent compliance or cannot authoritatively say that a future compliance would compensate for the earlier non-compliance, a decision reached without complying with the duty must always be quashed or, if (as in this case) such a decision results in a possession order, that possession order must always be set aside;
4) there was no material on which it could rightly be concluded that, if the duty had been complied with, a possession order would in any event had been sought and made; and
5) as a separate (second) ground of appeal, Cheema-Grubb J had relied on the absence of evidence of mental incapacity as justification for her conclusion that the same decision would have been reached; that reliance on an irrelevant matter, which had fallen out of the picture, vitiated her conclusion.
1) he should be allowed to withdraw his predecessor's concession that there had been a breach of the PSED;
2) the grant of relief in a case raising issues of public law (whether by way of claim or defence) was always discretionary;
3) the fact that discretion had in the past been exercised in two categories of case did not mean that the exercise of discretion was artificially confined to those categories;
4) there was ample material to show that, if the landlord had complied with its PSED, it would have sought and would have been granted possession; and
5) Cheema-Grubb J's recording of the absence of mental incapacity did not affect her decision.
1) the course of the hearings below might well have been different if the concession had not been made; there would have had to be an assessment of the different heads of duty under section 149 and of the impact of Ms Savage's acceptance that she had not complied with the duty; and
2) the ambit of the duty raised potentially broad-ranging questions on which it would not be appropriate for this court to embark as, in effect, a court of first instance from which there would be only a precarious right of appeal.
We therefore proceeded on the basis that there had been a breach of duty and that the court had to assess the consequences of that breach.
"It will be a very rare case, I suspect, where a substantial breach of the PSEDs would not lead to the quashing of a relevant decision."
The Divisional Court in that case held that there had in fact been substantial compliance and, in the event, did not quash the regulations.
"It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all passing circumstances of whatever magnitude."
"In my judgment, the previous decisions of the courts on the present subject of the application and working of the PSED, as on all subjects, have to be taken in their context. The impact of the PSED is universal in application to the functions of public authorities, but its application will differ from case to case, depending upon the function being exercised and the facts of the case. The cases to which we have been referred on this appeal have ranged across a wide field, from a Ministerial decision to a close a national fund supporting independent living by disabled persons (Bracking) through to individual decisions in housing cases such as the present. One must be careful not to read the judgments (including the judgment in Bracking) as though they were statutes. The decision of a Minister on a matter of national policy will engage very different considerations from that of a local authority official considering whether or not to take any particular step in ongoing proceedings seeking to recover possession of a unit of social housing."
In the context therefore of a typical possession action the court, while having regard to the importance of the PSED, will also have available to it the facts of the particular dispute and be able to assess the consequence of any breach of the duty more easily than in the context of a wide-ranging ministerial decision.
"Nothing we say should be thought to diminish the importance of proper and timely compliance with the PSED. But we have strong reservations about the proposition that the court should necessarily exercise its discretion to quash a decision as a form of disciplinary measure. During the course of argument, Mr Forsdick accepted that if an assessment, subsequently carried out, satisfied the court, there would be no point in quashing the decision if the effect of doing that and requiring a fresh consideration would not have led to a different decision. We think this was a correct concession. The court's approach should not ordinarily be that of a disciplinarian, punishing for the sake of it, in these circumstances. The focus should be on the adequacy and good faith of the later assessment, although the court is entitled to look at the overall circumstances in which that assessment was carried out."
Rather than acting as some sort of mentor the court should, in deciding the consequence of a breach of PSED, look closely at the facts of the particular case and, if on the facts it is highly likely that the decision would not have been substantially different if the breach of duty had not occurred, there will (subject to any other relevant considerations) be no need to quash the decision. If, however, it is not highly likely, a quashing order may be made.
"55. Of course, where a breach of the PSED is established then the court must exercise the requisite degree of care when concluding that compliance would have made no material difference. Otherwise, there is a risk that the importance of fulfilling the duty may be impermissibly demoted. Nevertheless, where, as in this case, the Judge has very carefully analysed the factors leading to his conclusion on this issue he is entitled, where appropriate, to uphold the decision. Any contrary approach would, in my view, mark the triumph of form over substance and give rise to the risk of serious injustice to those whose interests the original decision, although procedurally flawed, was rightly intended to protect.
56. Furthermore, I observe that section 31 of the Senior Courts Act 1981 (as amended) now provides:
"(2A) The High Court –
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."
57. It may be thought anomalous that the effect of a non-material breach of the PSED should automatically frustrate private law claims brought by a public body but, equally automatically, be ignored entirely in the context of public law challenges.
58. I note that the decision in Forward is under appeal to the Court of Appeal. It is to be hoped that, whatever the outcome, such guidance as may be given will significantly reduce the risk that, in future, possession applications are subject to protracted delays and uncertainty which are highly prejudicial to all of those affected."
"36. If the council's failure to comply with its duties under section 49A(1)(d) of the 1995 Act had been challenged by an application for judicial review rather than by way of a defence to the possession claim, it would have been open to the Administrative Court to conclude that, despite a proven past breach, the council's decisions already taken should not be set aside, if the court considered that the council could now be relied on to exercise its relevant future functions properly, with (of course) the sanction – if it were not to do so – of further proceedings whether by way of judicial review or under (if relevant) Part VII of the 1996 Act itself.
37. By analogy, given that a breach of a public law duty is relied on by way of defence in the present case, it seems to me that it is open to the court in this situation to take the view that, if the decision would not have been set aside on an application for judicial review, it should not provide a basis for a defence to the proceedings for possession. In Wandsworth Borough Council v Winder  AC 461, in which the availability of a public law defence in private law proceedings was established by the House of Lords, the decision at issue had been taken once and for all, namely to increase the level of the rent payable by council tenants, including the defendant. Here, by contrast, the Council's duty to Sam is a continuing duty, and the time when a possession order has been made is in practice the most significant stage at which the duty needs to be discharged properly. Before that, it is a question of looking to the future, with an imperative for the council of establishing that the house could be made available for a new caretaker. Once an order for possession has been made it is up to the council to deal with its functions of providing suitable accommodation for Sam and her family (being entitled to it, whether under Part VII or Part VI of the 1996 Act) and to do so in proper accordance with the applicable duties under the Housing Act 1996 as well as under (now) the Equality Act 2010."
"45. The judge was entitled to take the common sense view that, on the issue directly before him, namely the possession of the school house, there was only one possible answer, in view of the school's pressing need to replace its caretaker. The only other issue was what provision was to be made thereafter for the family. He understandably did not see it as part of his functions to police the performance of the authority's separate duties towards the vulnerable homeless under the housing legislation. He was satisfied on the evidence that "particularly having regard to Samantha's pregnancy this family will receive a high degree of priority".
46. In my view the issues in this case were and are straightforward. Once it was decided that there was no valid defence to possession, and the school's need for possession was compelling, there was no reason to delay a possession order. The judge was entitled to trust the authority to carry out their duties under the housing legislation. Lloyd LJ has referred to Lord Neuberger of Abbotsbury MR's advice to leave such questions "to the good sense and experience of judges sitting in the county court": see Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening)  PTSR 61. This in my view was such a case. Applying a practical approach the judge was entitled to find that consideration of Sam's disability would not have made any difference to the authority's decision to seek possession."
Maurice Kay LJ said that he "entirely agree[d] with the judgment of Lloyd LJ" but he, no more than Lloyd LJ, was considering the broader question.
The factual question
Second ground of appeal
"on the inescapable fact that the appellant did not provide any support for his assertion that he had mental health difficulties …"
But this statement has to be read in the context of the previous paragraph in which she adverted to the "apparently growing phenomenon" of cuckooing and to the fact that anti-social behaviour may be the consequence of exploitation by criminals of a susceptible tenant. It is not surprising that the judge then said that considerations of that sort foundered in this case because of the absence of mental disability. Nor is it surprising that she went on to say that Mr Forward had not demonstrated that he was someone acting under a disability. By that she referred to mental disability. It was always accepted by everyone including Cheema-Grubb J that Mr Forward had a physical disability; if that were not the case, the section 149 PSED would not have applied at all.
Lord Justice Bean:
Lord Justice Moylan:
UPON hearing Mr Toby Vanhegan, Mr Nick Bano and Ms Hannah Gardiner for the Appellant and Mr Nicholas Grundy QC and Ms Millie Polimac for the Respondent
IT IS ORDERED that:
(1) The appeal is dismissed;
(2) The Appellant shall pay the Respondent's costs of the appeal to the Court of Appeal, such costs to be assessed by way of detailed assessment if not agreed. The Appellant's personal liability to pay such costs shall not exceed the amount (if any) which it is determined to be reasonable for the Appellant to pay pursuant to section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Civil Legal Aid (costs) Regulations 2013;
(3) There be detailed assessment of the Appellant's publicly funded costs;
(4) Permission to appeal is refused.