Metropolitan Housing Trust Limited v TM

The public sector equality duty is a continuing, process-based duty. A decision-maker must consider it in substance, with rigour and an open mind. In ongoing possession proceedings, later compliance may in principle remedy an earlier breach, but it does not erase the original breach or resulting prejudice. An assessment carried out in the witness box will not ordinarily suffice where the decision has already been made, particularly where the evidence is ambiguous and exposes a risk of confirmation bias. If the breach remains material at trial, it may provide a defence to possession. The appeal was allowed and the possession claim dismissed.

This was a second appeal concerning possession of supported accommodation occupied by a protected party with schizophrenia. The registered social landlord relied on Ground 14 in Part II of the Housing Act 1988 following incidents involving violence and inappropriate conduct. The County Court made a possession order, and the High Court dismissed an appeal at [2020] EWHC 311 (QB). Both courts accepted that the landlord had breached the public sector equality duty by failing to reassess the decision after receiving medical evidence about the tenant’s lack of capacity, but considered that the breach had been remedied by evidence given at trial. The central issues were whether late compliance could remedy the breach, whether the witness-box evidence was sufficient, and whether the possession order could stand.

The Court of Appeal unanimously allowed the appeal. Nugee LJ gave the leading judgment, with Green LJ and Snowden LJ agreeing.

1. The public sector equality duty in section 149 of the Equality Act 2010 requires a proper process, undertaken in substance, with rigour and an open mind. It is not satisfied merely by carrying out a general proportionality assessment. The decision-maker should consider relevant evidence and keep proper records.
2. Although the duty is continuing, late compliance can in principle remedy an earlier breach in ongoing possession proceedings. The decisions in Barnsley MBC v Norton [2011] EWCA Civ 834, Powell v Dacorum [2019] EWCA Civ 23, Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334 and Taylor v Slough BC [2020] EWHC 3520 (Ch) supported that conclusion. Statements requiring advance consideration in one-off decisions, including those in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 and R (C (a minor)) v Secretary of State for Justice [2008] EWCA Civ 882, did not make the position absolute in ongoing proceedings. Later compliance does not retrospectively erase the original breach or neutralise prejudice. Relief remains discretionary.
3. The admitted breach was not remedied by Mr Print’s evidence. He said that, if deciding at that time, he would not have pursued possession proceedings, while also saying that continuing them remained proportionate. The evidence was ambiguous and speculative. Conducting the assessment in the witness box, after the litigation decision had been made, created an obvious risk of confirmation bias and did not demonstrate the required open-minded inquiry.
4. The Judge’s conclusion under section 31(2A) of the Senior Courts Act 1981 that it was highly likely that the same decision would have been reached could not be reconciled with Mr Print’s evidence. The statutory test therefore did not justify upholding the order.
5. Because the proceedings had continued in breach of the duty and the breach was material, the possession order could not stand. The claim was dismissed. A fresh claim based on the same incidents would not necessarily be abusive, as illustrated by Barber v Croydon LBC [2010] HLR 26. Green LJ additionally observed that an internal administrative review might have avoided the litigation and the resulting expenditure.

• Court of Appeal (Civil Division): In [2021] EWCA Civ 1890, the appeal was allowed. The possession orders were set aside, the claim was dismissed, and costs were awarded to the appellant.
• High Court (Queen’s Bench Division): In [2020] EWHC 311 (QB), Johnson J dismissed the appeal from the County Court.
• County Court at Cambridge: Recorder Hodge Malek QC made a possession order dated 13 September 2019, staying enforcement pending consideration of suitable alternative accommodation.