Luton Community Housing Ltd v Durdana

A breach of the public sector equality duty does not automatically defeat a social landlord’s possession claim. The court should refuse that consequence where it is highly likely that proper compliance would not have produced a substantially different decision.

The duty requires an open-minded and conscientious enquiry into the effects of the tenant’s disability. It does not require a particular result or qualify the landlord’s statutory power to seek possession. The weight assigned to disability and countervailing housing objectives remains for the landlord.

Even where the equality-duty defence fails, the court must separately determine whether possession is reasonable under section 7(4) of the Housing Act 1988.

A social landlord sought possession of an assured shorthold tenancy under Ground 17 of Schedule 2 to the Housing Act 1988. The tenant and her husband had obtained the tenancy after making false statements about their accommodation, income and savings. The tenant had post-traumatic stress disorder, and her young daughter had cerebral palsy.

The County Court found that the false statements had induced the grant of the tenancy. It nevertheless dismissed the possession claim because the landlord had failed to comply with the public sector equality duty under section 149 of the Equality Act 2010. The judge also considered that this breach made possession unreasonable.

The landlord appealed. The central issues were the consequence of the established breach, whether proper compliance was highly likely to have produced the same decision, and whether the Court of Appeal should itself order possession.

1. Appeal allowed and claim remitted. The landlord had breached the public sector equality duty. Its decision-maker had not considered how the disabilities affected the tenant and her daughter or how eviction would affect them. The proportionality review did not amount to the required open-minded and conscientious enquiry: per Patten LJ, Moylan and Newey LJJ agreeing.

2. Section 149 of the Equality Act 2010 imposes a duty to have due regard to equality objectives, not a duty to achieve a particular result. The regard required is that appropriate in all the circumstances. Its practical application varies with the public function and facts. The provision does not amend or qualify a social landlord’s statutory power to seek possession, although the landlord must perform the required assessment when deciding whether to begin or continue proceedings.

3. A breach of section 149 does not invariably require dismissal of a possession claim. Following Aldwyck Housing Group Ltd v Forward Ltd [2019] EWCA Civ 1334, the court should examine the particular facts. It should not dismiss the claim where it is highly likely that the decision would not have been substantially different had the duty been performed.

4. The County Court had applied an inevitability standard and therefore set the threshold too high. The relevant question was objectively what the landlord was highly likely to have decided after lawful consideration, rather than what the trial judge would have decided.

5. Proper consideration was highly likely to have produced the same decision. The medical evidence did not show that moving would have an acute or disproportionate effect attributable to disability. The landlord was entitled to give substantial weight to the shortage of social housing, its responsibilities to other applicants, and its justified policy of recovering homes obtained by deception.

6. The Court of Appeal declined to order possession itself. The reasonableness inquiry under section 7(4) of the Housing Act 1988 was separate, potentially wider and concerned circumstances at the time of determination. The claim was remitted to the County Court to decide whether making a possession order would be reasonable.

1. Court of Appeal (Civil Division): By [2020] EWCA Civ 445, unanimously allowed the landlord’s appeal against dismissal of the claim, but remitted the claim for determination of reasonableness under section 7(4) of the Housing Act 1988.
2. County Court at Clerkenwell and Shoreditch: HH Judge Bloom found that the tenancy had been induced by false statements but dismissed the possession claim because the landlord had breached the public sector equality duty. No neutral citation is stated.