Powell v Dacorum Borough Council

A public authority’s compliance with the public sector equality duty depends on the function being exercised and the facts known to it. The decision-maker must focus conscientiously on the relevant equality considerations, but may comply without knowing the duty’s name or the precise terms of Equality Act 2010, section 149.

A social landlord may ordinarily enforce a possession order where focused inquiries disclose no relevant change since the order was made. The duty remains continuing. New information about disability must therefore receive proper consideration before enforcement. Any earlier failure may be remedied by a lawful assessment at a later stage, including during enforcement proceedings.

The Council obtained a suspended possession order against its tenant following breaches involving drug-related activity. After further breaches, it obtained a warrant for possession. The tenant applied to suspend the warrant, relying ultimately on mental and physical disabilities and the Council’s public sector equality duty under section 149 of the Equality Act 2010.

A deputy district judge refused the application. HH Judge Bloom dismissed the tenant’s first appeal, holding that the Council had complied with the duty and that any earlier defect had in any event been remedied by a later proportionality assessment. The tenant appealed to the Court of Appeal. The central issues were whether the Council complied with the duty when requesting and pursuing the warrant, and whether any breach could be remedied later.

1. The appeal was dismissed unanimously. The public sector equality duty applies across the functions of public authorities, but its practical content depends on the particular function and circumstances. Statements in earlier judgments must be read in context rather than as provisions of a statute. A local authority officer deciding whether to enforce an existing possession order faces a different decision from a minister determining national policy.

2. The general principle is that the decision-maker must focus sharply and conscientiously on the aspects of the duty engaged by the facts. Express reference to the duty is useful but is not invariably essential. A conscientious officer may comply through good-faith, focused consideration of the disabled person’s circumstances even if unaware of the duty as a separately named obligation or of the precise terms of section 149 of the Equality Act 2010. Haque v Hackney LBC [2017] EWCA Civ 4 applied and Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 explained.

3. When the Council requested the warrant, it was entitled to proceed on the basis of an enforceable suspended possession order. Its officer had attempted to obtain current information about the tenant’s health and personal circumstances. Those focused inquiries disclosed no relevant change since the order had been made. The Council therefore complied with the duty despite the officer’s lack of formal training and uncertainty about the expression “public sector equality duty”. The position was analogous to Paragon Asra Housing Ltd v Neville [2018] EWCA Civ 1712, concerning enforcement absent a relevant change of circumstances.

4. The duty was continuing. When new psychiatric evidence was eventually produced, the Council expressly considered section 149 and assessed the consequences of eviction, the availability of other accommodation, the tenant’s health needs and the history of serious tenancy breaches. That assessment confirmed the decision to recover possession.

5. Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834 established that a social landlord may remedy an earlier failure to comply with the duty by giving proper consideration at a later stage before enforcement. Accordingly, even if the Council had been in breach when requesting the warrant, its later assessment remedied the defect. It was unnecessary to decide whether a court could alternatively dismiss a challenge because proper compliance would have made no difference.

1. Court of Appeal (Civil Division): The tenant’s appeal was dismissed. The Council had complied with section 149 of the Equality Act 2010, and any earlier defect would in any event have been remedied by its later assessment.
2. County Court at Luton, HH Judge Bloom: The tenant’s appeal was dismissed on 25 May 2018. The judge upheld the finding of compliance with the public sector equality duty and held that any earlier breach had been remedied.
3. County Court at Luton, Deputy District Judge Reissner: On 13 June 2017 the tenant’s application to suspend the warrant for possession was refused.