The Public Sector Equality Duty is set out in section 149 of the Equality Act 2010.
In summary, the Act requires public authorities to have due regard to the need to:
- eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act,
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
- foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
Protected characteristics are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
This blog looks at the Public Sector Equality Duty (“PSED”) in the context of housing possession claims as last year the timing of “having due regard” to the PSED was considered in the Court of Appeal. This was as a result of a possession order being appealed twice by a tenant (known as “TM”) against his landlord Metropolitan Housing Trust Ltd (“Metropolitan”).
Deciding what “having due regard” to the PSED entails is difficult to define but it is commonly accepted that the PSED can be met by formally recording considerations and the decision making process to proceed or not proceed with action against a tenant when information about a protected characteristic is known or, as the case may be, not known. This usually takes the form of a written risk assessment (”PSED assessment”) carried out by landlords which can then be updated throughout the life of a case and provided to the court and / or the tenant if appropriate.
One of the elements forming the basis of TM’s appeal in this recent case was that Metropolitan had not carried out a new PSED assessment in relation to its decision to continue to pursue a possession claim against TM when new information about his capacity to litigate and disability had come to light. Instead they had pressed on and then carried out an assessment with hindsight in the witness box during the trial, almost a full year later. Furthermore, this was not done voluntarily by Metropolitan at trial stage but it was done during cross-examination of an officer of Metropolitan when breach of the PSED was pleaded as part of TM’s defence.
During cross-examination Metropolitan said it still thought it was reasonable and proportionate to evict TM, even though it was accepted that a new PSED assessment should have been carried out when the capacity issues came to light after the first hearing a year before. Metropolitan also admitted that with hindsight it might have been better to try to find an alternative solution to court proceedings in light of TM’s protected characteristic. The judge noted that although the PSED was breached after that first hearing, that PSED had been met by way of the assessment during cross examination. The judge also agreed that it was reasonable and proportionate to evict and made a possession order.
This decision was appealed in the first instance but upheld. TM then appealed again to the Appeal Court. In respect of the PSED assessment carried out at the trial, confirmation bias in relation to a decision already made was considered, plus the pressured and public environment of cross-examination at trial and reputational issues for a landlord if they decided to reconsider the PSED and then not seek a possession order at trial after pursuing proceedings, and incurring the costs of doing so, for over a year first.
This time the appeal succeeded and the possession order was set aside with the claim for possession dismissed. The appeal judge decided that it is possible to remedy a breach of the PSED later on, even as late as at trial, but that does not render the original breach “wiped away as if it never happened”. The reasoning behind this was that the prejudice from the breach was already suffered by TM (alternative options for dealing with his behaviour were never considered or pursued) as a result of the breach and a delayed remedy does not neutralise that.
This case is important as it shows that even in strong claims for possession like this one, where TM had engaged in a number of serious anti-social incidents, including assaulting an officer of Metropolitan and not showing remorse afterwards, PSED assessments should not be delayed. Our advice is to formally record your consideration of the PSED in writing with notes about the decision-making process in relation to whether to pursue action against tenants at each significant stage in the litigation, including:
- Serving the notice
- Issuing proceedings
- Receipt of Defence, if it claims that the Defendant has a protected characteristic
- Receipt of medical evidence or any other information in respect of a protected characteristic or mental capacity.
The PSED assessment should be a used as live document, that is updated upon every reconsideration of the PSED that should take place whenever new relevant information comes to light….and not just when cross-examined on the PSED a year later!
If you have any questions about the PSED, or would like advice in relation to a PSED assessment, feel free to contact Zoe Conroy.
