Taylor v Slough Borough Council

In possession proceedings brought by a local authority, a breach of the public sector equality duty under Equality Act 2010, s 149, at an early stage may be cured by later compliance before the authority decides to continue the proceedings.

The later consideration must be undertaken in substance, with rigour and with an open mind. The earlier breach remains relevant because it may create a risk that later consideration is influenced by the decision already made. The court must assess whether the duty was in fact discharged, but must not substitute its own view of the weight to be given to equality considerations.

This was an appeal from an order of HHJ Melissa Clarke dated 18 June 2019 requiring Ms Kerry-Jane Taylor to give possession of her secure tenancy to Slough Borough Council. The possession proceedings arose from allegations of antisocial behaviour and rent arrears.

The Council knew of Ms Taylor’s diagnosis of bipolar disorder, but its initial Equality Act assessment proceeded on the mistaken basis that she had no disability. Later, after further information became available, the Council made enquiries concerning her mental health, housing needs and the effect of eviction. The central issue was whether the initial breach of the public sector equality duty could be cured by subsequent compliance and whether the trial judge was entitled to find that the duty had then been discharged.

1. Appeal dismissed. The trial judge had been entitled to conclude that the Council had complied overall with the public sector equality duty, notwithstanding the flawed initial assessment.
2. Because the initial assessment failed to take account of Ms Taylor’s disability, the Council was in breach of s 149 of the Equality Act 2010 when it commenced possession proceedings.
3. That breach was capable of being remedied by later compliance. The authorities, including Barnsley Metropolitan Borough Council v Norton, [2011] EWCA Civ 384, Powell v Dacorum Borough Council and [2019] HLR 21, established that, in possession proceedings brought by a local authority, an early failure to comply with the duty may be remedied when the authority later decides whether to continue the proceedings.
4. The continuing nature of the duty did not itself provide the legal basis for the cure. The relevant question was whether the later consideration was substantive, rigorous and open-minded. The earlier failure was relevant because later consideration might be tainted by the incentive to maintain the decision already taken.
5. The absence of a further formal Equality Act assessment or a specific moment when the Council expressly decided to continue the proceedings did not establish non-compliance. The court had to consider all the evidence, including the enquiries made of mental-health and support agencies, police involvement and steps taken to investigate supported accommodation.
6. The challenge to the trial judge’s factual finding failed. The appellant did not show that the finding was unsupported by the evidence or one which no reasonable judge could have reached. It was therefore unnecessary to consider whether relief could alternatively have been granted on the basis that the Council would probably have reached the same decision.

• High Court (Chancery Division): Appeal against the possession order made by HHJ Melissa Clarke on 18 June 2019 dismissed.