Forward v Aldwyck Housing Group Ltd

A breach of the public sector equality duty does not automatically invalidate a decision or confine the court to narrow categories in which relief may be refused. Public law relief remains discretionary.

The court must examine the particular function and facts. Where it is highly likely that proper compliance would not have produced a substantially different outcome, the court may refuse to quash the decision, subject to any other relevant considerations. The same principle applies when public law unlawfulness is raised as a defence to a private law possession claim.

National policy decisions and individual housing decisions may engage markedly different considerations. Authorities concerning major governmental decisions should therefore be applied in their proper context.

A social housing association obtained possession of a disabled tenant’s flat for tenancy breaches, nuisance and drug-related anti-social behaviour by his visitors. The landlord admitted that, before seeking possession, it had breached the public sector equality duty under section 149 of the Equality Act 2010.

The county court nevertheless made a possession order. The High Court held that the county court had erred in its approach to the duty, but dismissed the tenant’s appeal because proper consideration would inevitably have produced the same outcome.

The tenant appealed to the Court of Appeal. The principal issue was whether breach of the duty required the possession order to be set aside, absent later compliance or an undertaking providing compensating future compliance, and whether the High Court had relied improperly on the absence of mental disability.

1. Appeal dismissed. A breach of the public sector equality duty does not, as a general rule, require every subsequent decision to be quashed or set aside. Nor is the discretion to refuse relief confined to cases involving subsequent compliance or satisfactory future compliance. The nature of public law relief remains discretionary, including where public law unlawfulness is relied upon as a defence to private law proceedings.

2. The consequences of non-compliance depend on the function exercised and the particular facts. Decisions concerning national policy may involve considerations very different from an individual possession decision. In a typical possession claim, the court has the facts of the dispute before it and can more readily assess whether the breach affected the outcome. Authorities concerning substantial breaches in major governmental decisions must not be applied indiscriminately.

3. The court should not quash a decision merely to discipline the decision-maker. It must examine the circumstances closely. If it is highly likely that the decision would not have been substantially different had the duty been performed, relief may be refused, subject to any other relevant considerations. Otherwise, a quashing order may be appropriate. This approach accords with section 31(2A) of the Senior Courts Act 1981.

4. It would be anomalous for a non-material public law breach to be disregarded in judicial review but automatically defeat a private law possession claim. A tenant relying on public law by way of defence is subject to the corresponding public law consequences governing relief.

5. On the findings below, there was no viable alternative to possession. The landlord was also required to consider other tenants whose lives had been seriously affected by the tenancy breaches. The courts below were therefore entitled to conclude that proper performance of the duty would have made no difference to the decision to seek and grant possession.

6. The High Court’s references to the absence of mental disability addressed the tenant’s contention that he had been exploited through “cuckooing”. They did not cause the judge to overlook his accepted physical disability or vitiate her conclusion that the breach was immaterial. Longmore LJ gave the judgment, with which Bean and Moylan LJJ agreed.

1. Court of Appeal (Civil Division): The tenant’s appeal was dismissed and the High Court’s decision was upheld: [2019] EWCA Civ 1334.
2. High Court, Administrative Court: Cheema-Grubb J identified errors in the county court’s treatment of the public sector equality duty but dismissed the appeal because proper compliance would inevitably have produced the same outcome. No citation is stated.
3. Watford County Court: Judge Wood found the tenancy breaches and nuisance proved and made a possession order. She held in the alternative that possession was a proportionate means of achieving a legitimate aim.