Taylor v Slough Borough Council

The primary legal issue was whether the respondent local authority breached the public sector equality duty (PSED) under s.149 of the Equality Act 2010 when it commenced possession proceedings and whether any initial breach was subsequently cured. The High Court held that although the Equality Act assessment initially proceeded on the false premise that the tenant had no disability, the authority thereafter became aware of the tenant's mental-health diagnosis, took a series of enquiries and steps (including consulting local support agencies, engaging the police and exploring supported accommodation options) and thereafter discharged the PSED in substance, with rigour and with an open mind. The court accepted that, in the context of social-housing possession proceedings, an initial failure to have due regard to the PSED can be remedied by later lawful compliance; the judge’s factual findings that the Council had so complied were supported by the evidence and were not susceptible to reversal on appeal.

Background and parties. The appellant, Ms Kerry-Jane Taylor, held an introductory tenancy which became secure. She had a long history of substance misuse and mental-health diagnoses. Slough Borough Council sought possession of the property relying on the absolute ground for antisocial behaviour under s.84A of the Housing Act 1985 and, separately, on rent arrears under ground 1 of Schedule 2. A Closure Order had been made by the magistrates. An Equality Act assessment was carried out in March 2018 on the erroneous basis that Ms Taylor had no disability; the Council accepts she had been diagnosed with bipolar disorder and was known to the Council as such from 2012.

Nature of the claim and relief sought. The appeal challenged HHJ Melissa Clarke's order requiring possession and, in particular, whether the Judge was wrong to find no breach of the PSED or, alternatively, that any initial breach was cured by later conduct.

Issues framed by the court. (i) Whether there had been a breach of the PSED when the proceedings were commenced; (ii) if there had been a breach, whether subsequent conduct cured it; and (iii) if not cured, whether the possession order should nevertheless have been made.

Relevant factual findings and evidence. The trial judge received expert psychiatric evidence (Dr Akenzua) which diagnosed an emotionally unstable personality disorder and concluded that supported accommodation and intensive mental-health input were required. The judge found that, once Council staff appreciated the true diagnosis in or about June 2018, they treated Ms Taylor as having a protected characteristic, made enquiries of local support agencies (Turning Point and Common Point of Entry), liaised with the police, referred to intensive support services and explored possibilities for highly supported accommodation, and visited the tenant to discuss needs.

Court’s reasoning. The High Court held that in housing possession cases a breach of the PSED at an early stage can be remedied by subsequent, genuine compliance. The court relied on authorities to show that in the context of individual possession decisions later, substantive and rigorous consideration may cure an earlier defect. The judge’s factual conclusion that the Council, from June 2018, exercised the PSED in substance, with rigour and with an open mind was a finding of primary fact and not one the appeal court would displace: the range of enquiries and interventions made by the Council sufficiently demonstrated subsequent compliance. The court therefore dismissed the appeal.

Wider commentary. The judgment recognises that the PSED is a continuing duty and that the context of the public authority function (national policy versus individual housing decisions) affects the formality and timing of compliance; it also reiterates the evidential value of recorded steps while acknowledging that absence of formal documentation is not necessarily fatal where testimony and other evidence show substantive consideration.

Appeal dismissed. The court upheld HHJ Melissa Clarke's finding that although the Council's initial Equality Act assessment in March 2018 was flawed because it failed to recognise the tenant's disability, the Council subsequently became aware of the disability, undertook targeted enquiries and steps and, on the facts found by the trial judge, complied with the PSED in substance, with rigour and with an open mind; an initial breach in this context can be cured by later lawful compliance and the judge's factual findings were not susceptible to interference on appeal.

This is an appeal to the High Court (Chancery Division, Appeals (ChD)) against HHJ Melissa Clarke's possession order dated 18 June 2019. Mann J gave permission to appeal on the single PSED ground by order dated 27 April 2020. The possession order was stayed by Nugee J on 10 July 2019. The present judgment is the High Court's determination of that appeal ([2020] EWHC 3520 (Ch)).