Powell v Dacorum Borough Council

This appeal concerned an application to suspend execution of a warrant for possession of social housing and whether the landlord had breached its public sector equality duty (PSED) under s.149 of the Equality Act 2010 when seeking enforcement. The county court judge and the High Court judge below found that the tenant had repeatedly breached a suspended possession order by engaging in drug dealing and that the council had carried out reasonable enquiries about his health before requesting the warrant.

The Court of Appeal held that, on the evidence, the council either had not failed to give the required "due regard" to equality considerations when requesting the warrant or, if any defect existed, it was remedied by a subsequent proportionality assessment produced after new medical material emerged. The court applied the principles in Barnsley MBC v Norton (that any defect may be remedied later in the process) and Paragon Asra Housing Ltd v Neville (that a court's earlier proportionality inquiry when making a possession order cannot be re-opened absent a relevant change of circumstances) in dismissing the appeal.

The appellant, Mr Powell, was a long-standing tenant of Dacorum Borough Council. Following criminal incidents and findings of drug-related activity at his flat, the council obtained a suspended possession order on 23 October 2015. After further incidents and a police closure order, the council requested a warrant for possession. Mr Powell applied on 17 March 2016 to suspend execution of the warrant, relying in particular on the council's alleged failure to comply with its public sector equality duty under s.149 Equality Act 2010 and on its Anti-Social Behaviour (ASB) policy.

Nature of the application: an application to suspend a warrant for possession of social housing pending consideration of equality and proportionality arguments.

Issues framed:

• Whether the council breached the PSED when requesting the warrant.
• Whether the council complied with its own ASB policy.
• If there was a breach of the PSED at the warrant stage, whether that breach was capable of remedy and was remedied by later consideration (the proportionality assessment prepared after medical evidence was disclosed).

Procedural posture: Deputy District Judge Reissner dismissed the application on 13 June 2017; an appeal to HH Judge Bloom (County Court at Luton) was dismissed (order of 25 May 2018); this is the appeal to the Court of Appeal.

Court's reasoning: The deputy judge made primary findings of fact that drug dealing had occurred and that the tenant had breached the suspended possession order repeatedly. The Court of Appeal reviewed whether, in requesting the warrant, the council had failed to have "due regard" to equality considerations. The court concluded that the council’s anti-social behaviour officer had made reasonable enquiries and had no evidence of a disability that would have engaged s.149 at the warrant request stage. When new medical evidence emerged, the council produced a proportionality assessment which expressly addressed s.149; the court concluded that this remedied any earlier defect. The court emphasised the contextual nature of PSED obligations, relied on Barnsley MBC v Norton to permit remediation of defects at a later stage, and relied on Paragon Asra Housing Ltd v Neville to reject a suggestion that a tenant may re-run the proportionality inquiry absent a relevant change of circumstances.

Subsidiary findings: the deputy judge's factual findings about drug dealing and repeated breaches of the suspended order were decisive and not disturbed; the council’s ASB policy had been followed in practice.

The appeal is dismissed. The court concluded that, on the material before the council when it requested a warrant, there was no failure to give "due regard" under s.149 of the Equality Act 2010; alternatively, any shortcoming was remedied by the later proportionality assessment produced after new medical evidence. The deputy judge’s factual findings of repeated breaches of the suspended possession order and of drug dealing justified enforcement.

Appeal to the County Court at Luton from the decision of Deputy District Judge Reissner (order of 13 June 2017 dismissing the application to suspend a warrant). HHJ Bloom (County Court at Luton) dismissed the appellant’s appeal (order of 25 May 2018). The appellant then appealed to the Court of Appeal, reported at [2019] EWCA Civ 23.