Metropolitan Housing Trust Limited v TM

The Court of Appeal allowed the appeal and set aside the possession orders made below because Metropolitan breached the public sector equality duty (PSED) in s.149 of the Equality Act 2010 by failing to re-assess its decision to continue possession proceedings after receiving evidence (Dr Koch’s report) that the tenant, TM, lacked capacity to participate in the litigation. The court held that the Recorder’s finding that the breach was remedied by the evidence given by Metropolitan’s decision-maker in the witness box was unsafe: the PSED requires an open‑minded, rigorous assessment and, while belated compliance can in principle cure an earlier breach, carrying out the assessment in the witness box is prone to confirmation bias and was not sufficient on these facts. The claim for possession was dismissed and the possession orders set aside.

This is an appeal from possession proceedings brought by a registered provider of social housing against a tenant in supported accommodation. The respondent (Metropolitan Housing Trust) sought possession of a unit of supported housing occupied by TM, an adult with schizoaffective disorder and treatment‑resistant paranoid schizophrenia. Metropolitan relied on Ground 14, Schedule 2 of the Housing Act 1988 after two serious incidents in May 2018 (an assault on a staff member and an exposure to a resident), and advanced other prior and subsequent incidents as context.

Procedural history:

• County Court (Recorder Hodge Malek QC) heard trial in September 2019 and granted possession but stayed enforcement pending alternative accommodation; found Ground 14 established and rejected PSED and discrimination defences.
• Permission to appeal was granted to the High Court; Johnson J dismissed the appeal on 30 January 2020 ([2020] EWHC 311 (QB)).
• Permission to the Court of Appeal was given by Asplin LJ. The Court of Appeal heard the appeal and allowed it on 20 December 2021.

Relief sought: Metropolitan sought a possession order against TM.

Issues framed by the court:

• Whether Metropolitan complied with the PSED (s.149 Equality Act 2010) when it decided to bring and then to continue the possession proceedings after receipt of Dr Koch’s report that TM lacked capacity;
• whether an admitted breach of the PSED could be remedied by belated compliance, including by evidence given in the witness box; and
• whether the Judge below misapplied s.31(2A) Senior Courts Act 1981 in concluding it was highly likely Metropolitan would have reached the same decision if it had properly complied with the PSED.

Court’s reasoning (concise): The Court accepted that the PSED applied and that Metropolitan breached it by failing to reassess the decision to continue proceedings in light of the psychiatrist’s October 2018 report on TM’s incapacity. The Court reviewed authorities on the PSED and its continuing nature and concluded that, although belated compliance can in principle cure an earlier breach, the assessment must be carried out "in substance, with rigour and with an open mind." The Court found that attempting to cure the breach by the decision‑maker giving evidence in the witness box was inherently unsatisfactory and, on the facts, did not amount to effective remediation. The Court also concluded that the High Court was wrong to find it "highly likely" Metropolitan would have reached the same decision had it properly re‑assessed the position. Having found an unremedied breach that bore on TM’s ability to participate and the fairness of the proceedings, the Court set aside the possession orders and dismissed the claim. The Court observed that Metropolitan could, if appropriate, bring a fresh possession claim after conducting a proper PSED assessment; such a second action would not necessarily be an abuse of process.

This is an appeal allowed. The Court of Appeal held that Metropolitan breached the public sector equality duty by failing to re-assess its decision to continue possession proceedings after receipt of expert evidence that TM lacked capacity. The breach was not remedied by the decision‑maker’s evidence in the witness box. For those reasons the possession orders below were set aside and the respondent’s claim for possession was dismissed.

County Court (Recorder Hodge Malek QC) hearing 9–11 September 2019; possession order and stay of enforcement made 13 September 2019. Recorder refused permission to appeal; permission given by Eady J. High Court (Johnson J) dismissed appeal [2020] EWHC 311 (QB) (judgment 30 January 2020; order 31 January 2020). Permission for second appeal to Court of Appeal granted by Asplin LJ (9 March 2021); Court of Appeal judgment allowing appeal 20 December 2021 ([2021] EWCA Civ 1890).