Forward v Aldwyck Housing Group Ltd

The Court of Appeal dismissed the tenant's appeal against a possession order made after findings of serious anti-social behaviour. The landlord had admitted a breach of its public sector equality duty under section 149 of the Equality Act 2010, but the court held that such a breach does not automatically require quashing of the decision where, on the facts, it is highly likely the decision would not have been substantially different had the duty been complied with. The court accepted the lower courts' findings that the tenant's physical disability had no causal link to the anti-social conduct, that there were no viable alternatives to possession, and that the possession order was a proportionate means of protecting other tenants. The appeal was therefore dismissed.

Background and procedural history:

• The landlord, a social housing association, obtained a possession order against the tenant after evidence of repeated anti-social behaviour at the tenant's flat, including drug-related activity, and a closure order imposed by the police. Proceedings began in 2017; trial was before Judge Wood at Watford County Court, who found breaches of the tenancy and granted possession on 12 March 2018. The tenant appealed to the Administrative Court (Cheema-Grubb J), which dismissed the appeal. The tenant then appealed to the Court of Appeal ([2019] EWCA Civ 1334).

Nature of the claim and relief sought:

• The tenant challenged the possession proceedings on public law grounds by relying on the landlord's admitted failure to comply with the public sector equality duty (PSED) in section 149 of the Equality Act 2010. The tenant sought to set aside the possession order on the basis that the PSED breach was material.

Issues framed by the court:

• Whether a failure to comply with the PSED necessarily requires quashing of the later decision (here, the possession order), or whether the court should assess whether compliance would have made a material difference to the outcome.
• Whether, on the facts and findings below (including that there was no causal link between the tenant's physical disability and the anti-social conduct and that the tenant had not proved a mental disability), compliance with section 149 would have led to a different result.

Court's reasoning and conclusion:

• The court rejected any rule that a PSED breach automatically vitiates the decision; instead the court must assess whether it is highly likely the outcome would not have been substantially different if the duty had been complied with, having regard to relevant authorities and statutory guidance such as the Senior Courts Act 1981 section 31(2A).
• The Court of Appeal declined the landlord's attempt to withdraw its concession of a PSED breach but proceeded to consider consequences. It upheld Judge Wood's factual findings that the tenant's physical disability was not causally linked to the anti-social behaviour, that there was no practicable alternative to possession, and that possession was proportionate to protect other tenants. Cheema-Grubb J's conclusion that the failure to carry out a structured PSED assessment was not a material error was endorsed because on the facts the same decision would have been reached.
• The appeal was dismissed and the tenant was ordered to pay the respondent's costs of the appeal to the Court of Appeal subject to statutory limits.

Appeal dismissed. The court held that a breach of the public sector equality duty under section 149 of the Equality Act 2010 does not in all cases automatically require quashing of the decision. The court must consider whether it is highly likely the outcome would not have been substantially different if the duty had been complied with. On the facts (findings that the tenant's physical disability was not causally linked to the antisocial conduct, absence of viable alternatives to possession and proportionality of eviction) the court concluded the PSED breach was not material and the possession order would have been made in any event.

Trial and possession order granted by Judge Wood at Watford County Court (trial January 2018; order 12 March 2018). Appeal to the Administrative Court (Queen's Bench Division) heard by Cheema-Grubb J and dismissed. Further appeal to the Court of Appeal, resulting in dismissal ([2019] EWCA Civ 1334).