Forward v Aldwyck Housing Group Ltd

A breach of the public sector equality duty under Equality Act 2010, section 149, does not automatically determine a possession claim. The duty requires a rigorous, open-minded assessment of the likely impact of eviction against the statutory equality objectives. It is distinct from a simple proportionality assessment under the discrimination provisions.

A failure to comply with the duty may nevertheless be immaterial on appeal where the evidence shows that a compliant assessment could not realistically have produced a different decision. The court may consider the strength of the evidence of disability, its connection with the anti-social behaviour, the seriousness and duration of the conduct, and the viability of alternatives to eviction.

Mr Forward appealed against a possession order made by Judge Wood at Watford County Court on 12 March 2018. Aldwyck Housing Group Ltd had relied on grounds 12 and 14 in Schedule 2 to the Housing Act 1988, following anti-social behaviour and drug-related activity connected with the appellant’s flat.

The appellant relied principally on disability discrimination and breach of the public sector equality duty under section 149 of the Equality Act 2010. It was common ground that Aldwyck had failed to comply adequately with the duty before commencing possession proceedings. The central issues were whether breach of the duty could be raised in answer to a possession claim, what relief was appropriate, and whether the breach was material.

1. Appeal dismissed. The possession order stood. The parties were directed to agree consequential matters, including costs.
2. A breach of the public sector equality duty may be raised in possession proceedings. Judge Wood was wrong to conclude, relying on Hertfordshire County Council v Davies, that breach of the duty could not provide a defence unless linked to a private law right.
3. The duty under section 149 requires more than the proportionality balance required by a discrimination claim. The decision-maker must conduct a rigorous and open-minded consideration of the impact of the proposed eviction against the statutory equality objectives, in the specific factual context. A duty of inquiry may arise, depending on the circumstances.
4. The breach was not material. The evidence before the lower court provided minimal support for a mental disability and did not establish that the anti-social behaviour was associated with such a disability. There was substantial evidence that the appellant had permitted drug-related activity and visitors at the property. The respondent had engaged with him, considered alternatives, and could properly conclude that further measures would not adequately protect neighbouring residents.
5. The court rejected the fresh evidence under the principles in Ladd v Marshall. It would not have altered the outcome. Even assuming that a compliant assessment had relied on the later medical material, the decision to seek eviction would inevitably have been the same. The court applied the approach in Regina (West Berkshire District Council and another) v Secretary of State for Communities and Local Government: defective timing or form of compliance does not require relief where the defect made no material difference.

• Watford County Court: Judge Wood made a possession order on 12 March 2018 in favour of Aldwyck Housing Group Ltd.
• High Court (Queen’s Bench Division): The appeal was dismissed. The court held that the public sector equality duty could be raised, but that the admitted breach was immaterial on the evidence.