Tag Archives: Homelessness

Is The Public Sector Equality Duty A Paper Tiger When It Comes To Housing Law?

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.

Kannan v Newham London Borough Council [2019] EWCA Civ 57

Summary

The Court of Appeal held that a reviewing officer had failed to discharge the Public Sector Equality Duty when considering whether a property was suitable for a disabled applicant

Law Reports

Bailii

Articles About The Case

Capsticks –Housing case law – February 2019 update

Ward Hadaway Speed Read

Five Paper Buildings

Nearly Legal

Tenure is not a medical matter

 

 

R (Lawer) v Restmorel BC [2007] EWHC 2299

In a nutshell this case concerns an application for emergency injunction from the High Court over the telephone in circumstances which were found to be inappropriate. The Claimant’s solicitor and counsel were criticised for at best having failed to give the Judge the whole picture so that they had in effect misled him. The case is important reading for any lawyers applying for emergency injunctions. It is still be used [at the time of writing in 2016] by local authorities to argue that emergency injunctions are being obtained in appropriately. As a result it is important for counsel to keep a detailed attendance note of their telephone application when obtaining an out of hours Order.

Summary
The claimant fled with her children from domestic violence in her matrimonial home and she gave up the secure housing association tenancy of that home. The council decided that she had become homeless intentionally. It notified her by letter dated 23 August 2007 that it would only provide accommodation for her until 21 September.

The claimant applied for a review and her solicitors asked for accommodation pending the outcome of that review (Housing Act 1996 section 188(3)). The council declined. Accommodation was withdrawn on 21 September and eventually the claimant was street homeless.

On the evening of 28 September 2007 her solicitors obtained a without notice injunction by telephone from the duty judge requiring the council to accommodate. On the council’s application, a High Court judge set aside the order. There had been material non-disclosure to the duty judge and, in any event, the injunction was not warranted as the underlying judicial review claim was without merit. The judgment gives useful guidance to practitioners on the making of urgent injunction applications.

This summary is from Garden Court Chambers News & Views – October 2007

Links

Baillii Transcript

Nearly Legal 2007 – Homelessness and Ex Parte Injunctions – A Warning 

Law Society Gazette Article 2008 – Abusing the system 

Cambridge Law Digest

R v Hillingdon LBC ex p Puhlhofer [1986] AC 484, HL

The Facts
Mr and Mrs Puhlhofer were living with their two young children temporarily in bed and breakfast accommodation in a guest house. They had one single bedroom with no means of washing clothes or cooking. They applied to the local authority for accommodation as homeless persons because the room was inadequate for their needs. The council decided that they were not homeless or threatened with homelessness within the meaning of the Housing (HP) Act 1977, s.1.

The Court of Appeal
In the Court of Appeal Ackner LJ (supporting the judgment of Hodgson J) held that the word “accommodation”:

…cannot mean simply premises in which the applicant and his family are presently lodging. In my judgment the accommodation must be such that it is reasonable for the applicant and his family to continue to occupy it, having regard to the general circumstances prevailing in relation to housing in the area of the housing authority to whom he has applied (at p 493).

The House Of Lords
The House of Lords upheld the local authority’s decision. In deciding whether or not an applicant was homeless, the local authority did not have to consider whether any existing accommodation was appropriate or reasonable.

The consequence of the decision in Puhlhofer was that a person accommodated in conditions so intolerable that it would not be reasonable for him to continue to occupy that accommodation was not homeless although, if he actually left, he would not thereby become intentionally homeless.

This produced the inconvenient result that persons living in such conditions had to put themselves on the street before they could activate the local authority’s duty to provide them with accommodation

Corrrection of the House of Lords Error via the Housing and Planning Act 1986
During the passage of the Housing and Planning Act 1986, Baroness David backed by Shelter sought tenaciously to tackle the injustice that resulted from the decision in Puhlhofer. The successful amendment enlarged the definition of homelessness to include the requirement that accommodation must be reasonable to continue to occupy. Section 14(2) of the Act amended the Homelessness Act 1977 so as to add the requirement that the accommodation available to a person had to be “suitable” for them.

Significantly the predecessor provisions to ss 206 and 210 of the Housing Act 1996 – (discharge of functions by local authorities and suitability of accommodation with reference to fitness standards) were also brought in under the Puhlhofer amendment.

Links

Swarb.co.uk

Balii

7 July 2015 Doughty Street Chambers Seminar Material The End of Puhlhofer? copy

 

Lally v Kensington and Chelsea London Borough Council 1980

Mr Justice Browne-Wilkinson ruled that an authority must given an intentionally homeless person a reason- able period of time; sufficient to reasonably enable him to obtain his own accommodation. In the present case the authority had acted illegally by imposing a 14 day time limit on the provision of temporary accommodation for the plaintiff, who had been found intentionally homeless.

Links

(R v Gravesham BC, ex p. Winchester (1986) 18 HLR 207 QBD at 215)

The court considered the nature of the assessment required of a housing auithority when application was made by a person claiming to be homeless. Simon Brown J said: ‘The duty to make necessary inquiries is not a duty to make all inquiries in fact necessary before the truth can be ascertained. A council which makes numerous inquiries can in my judgment only be attacked for failing to making one more if it failed to make an inquiry which no reasonable council could have failed to regard as necessary.’

Link
Swarb.co.uk

Codes of Guidance

Homelessness Codes of Guidance

Children and Young Persons

Discrimination – Equality Act 2010

Housing Act 1996

Commentary