Luton Community Housing Ltd v Durdana

The Court of Appeal allowed the landlord's appeal against dismissal of its possession claim brought under ground 17 of Schedule 2 to the Housing Act 1988. The County Court had found that the tenant and her husband obtained the tenancy by false statements and that ground 17 was therefore made out, but dismissed the claim because the landlord had breached the Public Sector Equality Duty (PSED) in s.149 of the Equality Act 2010 by failing to have due regard to the disabilities of the tenant and her child when deciding to seek possession.

The Court of Appeal held that there was indeed a failure to comply with s.149 because the landlord's contemporaneous Equality Act assessment was inadequate, but concluded that, applying the test developed in Aldwyck/Forward, it was highly likely that a proper PSED assessment would nonetheless have led the landlord to continue the possession claim. For that reason the appeal was allowed and the matter was remitted for the judge below to determine, under s.7(4) of the Housing Act 1988, whether it is reasonable to make a possession order.

The respondent tenant and her husband, both former council employees, were allocated social housing after giving false information on housing application forms. Luton Community Housing Limited sought possession relying on ground 17 of Schedule 2 to the Housing Act 1988 (tenancy obtained by false statements). At trial HH Judge Bloom found the false statements and inducement established but held that LCH had breached the Public Sector Equality Duty in s.149 of the Equality Act 2010 because its Equality Act assessment was inadequate. The County Court dismissed the possession claim on that basis.

The claimant appealed. The issues before the Court of Appeal were whether LCH had complied with the PSED when deciding to seek possession, and if there was a breach, whether that breach required dismissal of the claim or whether the court should nevertheless allow the claim because it was highly likely that a proper PSED assessment would have produced the same result.

The Court of Appeal summarised the content and purpose of s.149 and related authorities, and accepted that the PSED was engaged once LCH knew that the tenant and her child were disabled. The appellate court agreed there had been a breach because the Equality Act review was perfunctory and did not show that LCH had had due regard to the particular impact of eviction on the disabled persons. It then applied the established test (from Aldwyck/Forward) that a decision taken in breach of the PSED will not necessarily be quashed if it is highly likely the outcome would have been the same had the duty been complied with. Having considered the medical and other evidence and the landlord's policy and housing shortage context, the Court concluded it was highly likely that LCH would have continued the possession claim even after a proper s.149 assessment. The appeal was therefore allowed and the case remitted to the County Court to decide whether, under s.7(4) Housing Act 1988, it is reasonable to make the possession order in all the circumstances.

Procedural posture: appeal from County Court at Clerkenwell and Shoreditch (HHJ Bloom) to the Court of Appeal ([2020] EWCA Civ 445). The Equality and Human Rights Commission was granted permission to intervene.

Appeal allowed. The Court of Appeal held that although LCH breached its duty under s.149 Equality Act 2010 because its Equality Act assessment did not show due regard to the disabilities of the tenant and her child, it was highly likely that a proper s.149 assessment would nonetheless have resulted in the landlord continuing the possession proceedings given the deception used to obtain the tenancy and acute shortage of social housing. The claim was therefore restored and remitted to the County Court for a determination of whether it is reasonable to make a possession order under s.7(4) Housing Act 1988.

Appeal from the County Court at Clerkenwell and Shoreditch (HHJ Bloom, D00LU819) where the possession claim was dismissed; appealed to the Court of Appeal, neutral citation [2020] EWCA Civ 445.