Steven Laidley v Metropolitan Housing Trust Limited

This appeal concerns the use of a court-appointed Equality Act assessor in possession proceedings under the Housing Act 1988 and the extent to which the assessor's advice must be disclosed to the parties. The court reiterated that s.114(7) of the Equality Act 2010 requires appointment of an assessor unless good reasons exist, but that his or her role under s.63(1) of the County Courts Act 1984 and CPR 35.15 falls within the judge's wide discretion.

The key legal principle is the distinction between (a) an assessor providing evidential expert material or a report, which as a general rule must be disclosed to the parties, and (b) an assessor assisting the judge in evaluating and weighing evidence already before the court, in which case there is no general duty of disclosure unless fairness requires it. Where an assessor performs an evaluative function (for example on proportionality and balancing in discrimination issues under the Equality Act) disclosure is not normally required.

Applying these principles, the court found that the Equality Act assessor in this case provided evaluative assistance about proportionality and the weight to be given to the evidence (not new factual or expert evidence). The trial judge did not err in declining to disclose the assessor's advice and did not misapply the assessor by asking for assistance within her competence. The judge's primary findings — that the claimant landlord proved nuisance in breach of the tenancy, that the tenant was disabled within the Equality Act, that the landlord had engaged with its public sector equality duty and that a possession order was a proportionate means to legitimate aims — were upheld.

This is an appeal from possession proceedings brought by Metropolitan Housing Trust seeking possession of social housing occupied by the appellant, Mr Laidley, who was diagnosed with a delusional disorder and found to lack litigation capacity. The landlord relied on Grounds 12 and 14 of Schedule 2 to the Housing Act 1988. The tenant defended and counterclaimed alleging discrimination under the Equality Act 2010. An Equality Act assessor was appointed under s.114(7) of the Equality Act, acting under s.63(1) of the County Courts Act 1984 and CPR 35.15.

The procedural posture: the trial was heard in two parts (April and December 2023). On 17 April 2023 the county court judge refused the tenant's application to require the assessor's advice to be given in open court or otherwise disclosed. The trial resumed and, after hearing witnesses and expert psychiatric evidence, the judge made final orders on 15 December 2023 allowing the landlord's possession claim. The tenant appealed both the refusal to disclose the assessor's advice and the final possession order; permission to appeal was given and the possession order was stayed pending appeal.

Nature of relief sought: the landlord sought possession of the flat; the tenant counterclaimed for discrimination and breach of the Equality Act.

Issues framed by the court:

• whether the assessor's advice to the judge should have been disclosed to the parties (article 6 / natural justice concerns), and
• whether the judge improperly sought or relied upon the assessor's advice on issues beyond her competence or failed to obtain advice on matters within her expertise (in particular issues under the Equality Act such as s.149 public sector equality duty, legitimate aim and proportionality).

Reasoning and conclusions:

• The court analysed authorities on assessors (including decisions on nautical, medical and scientific assessors and the distinct approach in Ahmed v University of Oxford) and concluded there is no single universal rule: disclosure is normally required where the assessor performs an evidential function (for example prepares a report or gives expert evidence), but not where the assessor assists the judge in evaluating the parties' evidence.
• The judge has a broad discretion under s.63(1) and CPR 35.15 to determine the assessor's role. Section 114(7) compels appointment but does not remove judicial discretion as to how the assessor is used.
• On the facts, the court found it was common ground the appellant was disabled; the assessor's role was to assist in weighing proportionality and balancing the competing interests under the Equality Act rather than to provide fresh factual or expert evidence. No procedural unfairness arose from non-disclosure and the trial judge did not err in law or principle. The substantive findings that nuisance occurred, that the Trust had complied with its equality duties, and that possession was proportionate were upheld.

The court therefore dismissed both grounds of appeal.

Appeal dismissed. The court held that s.114(7) of the Equality Act requires the appointment of an assessor but that the judge retains a wide discretion under s.63(1) of the County Courts Act 1984 and CPR 35.15 as to the assessor's role. Distinction was drawn between assessors who provide evidential reports (which should be disclosed) and assessors who assist evaluation of evidence (whose advice need not be disclosed unless fairness requires). On the facts the Equality Act assessor performed an evaluative function on proportionality and balancing; disclosure was not required and no procedural unfairness or misdirection arose. The trial judge's findings on nuisance, disability, engagement with equality duties and proportionality were correct.

The proceedings originated in the County Court at Central London (sitting at Willesden) where the Trust, as claimant, obtained a possession order after a two-part trial (April and December 2023). The appellant challenged an interlocutory order (17 April 2023, drawn up 22 May 2023) refusing disclosure of the Equality Act assessor's advice and the final possession order (15 December 2023). Permission issues were addressed at various stages: on 23 November 2023 permission to appeal the adjournment was refused and the assessor appeal was adjourned; Rajah J stayed the possession and costs orders on 28 December 2023; Richard Smith J granted permission to appeal in relation to both the assessor order and the trial order on 6 March 2024. This appeal was heard in the High Court (Chancery Appeals) and dismissed on 16 July 2024.