The simple answer to this question based on recent case law seems to be – Yes when it comes to possession proceedings but No when it comes to Homeless Appeals.
A paper tiger is something which appears to be strong but does not really have any power. The term was famously used by Mao Tse-Tung to describe American foreign policy in 1956.
The Public Sector Equality Duty is set out at Section 149 of the the Equality Act 2010. The Gov.UK Website page Equality Act 2010 Guidance states that it means that public bodies have to consider all individuals when carrying out their day-to-day work – in shaping policy, in delivering services and in relation to their own employees. It also requires that public bodies have due regard to the need to:
- eliminate discrimination
- advance equality of opportunity
- foster good relations between different people when carrying out their activities
It would seem therefore that where it can shown that a tenant is suffering from a disability which might give rise to their public sector landlord taking possession against them the tenant might have a defence to the claim in that the landlord can hardly be eliminating discrimination if they are evicting someone in circumstances which amount to discrimination. Recent cases show that this is not however likely to be case.
The first weakness of the duty is that it is not a duty to take any action or desist from other actions. It is only a duty to have regard to the above matters. Thus the duty can be discharged if the landlord can show that they have had due regard to the duty but have gone on to take possession action anyway.
The second weakness is that even if the landlord cannot demonstrate that they had due to regard to the disability of the tenant before issuing possession proceedings or even later they can resolve this problem by having regard later on. This was what was held in the case of Powell v Dacorum (2019)
The third weakness is that a breach of the duty will not give rise to a defence if the landlord can show that even if they’d had due to regard to the disability of the tenant it would not have made any difference and that they would still have taken possession action anyway. This was what was held in the case of Steven Forward v Aldwyck Housing Group LTD (2019)
The approach taken in Powell and Forward was endorsed by the High Court on hearing the appeal in London and Quadrant Housing Trust v Patrick (2019)
Following these three cases there seems little prospect of success for a defence based on the Public Sector Equality Duty provided the landlord can demonstrate by the time of the trial that due regard has been had to the duty.
The ease with which the Public Sector Equality Duty can be discharged by landlords does make it appear to be a paper tiger when it comes to possession proceedings. It should however not be dismissed so quickly in other areas of housing law such as homelessness reviews and appeals. Local authorities were found to have made errors of law in failing to discharge the duty when dealing with disabled applicants in the cases of Lomax v Gosport (2018) and Kannan v Newham (2019).
The lack of bite for the Public Sector Equality Duty in possession should not actually be seen as as major problem for tenants. This is because the the Equality Act 2010 provides tenants with another more powerful weapon in the form of Section 15 of the Act which provides that a person discriminates against another if they treat them unfavourably as a result of something arising in consequence of their disability. This means that where a tenant is able to show that they have a disability which has given rise to possession action they will have a good prospect of being able to persuade a Judge that they have a good defence to the claim because it is based on unlawful discrimination. The landlord will then only be able to evict them if they can show that the discrimination is justified as a proportionate means of achieving a legitimate aim.
I hope to deal with Section 15 and when discrimination will be lawful another day but for now I will point out that the availability of Section 15 as a protection for disabled tenants means that it will generally only be in pretty much hopeless cases that the tenant has to rely on Section 149 and the Public Sector Equality Duty because they are unable to rely on Section 15. In order for the landlord to have persuaded the Court that the discrimination was lawful for the purposes of Section 15 they will have had to carry out an assessment which should meet the requirements of Section 149 and be able to show that they have had due regard. Where a Judge has held that discrimination is permissable for the purposes of Section 15 it is hard to see a Judge going on to find that the landlord has not had due regard to the issues set out in Section 149.
Section 15 does not arise as easily in homelessness cases where the council is not taking action against the applicant but has reached a decision based on consideration of their circumstances. The issues to be considered in Section 149 will therefore be of much greater importance.