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Neutral Citation Number: [2020] EWCA Civ 445

Case No: B2/2019/1100

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT CLERKENWELL AND

SHOREDITCH

HER HONOUR JUDGE BLOOM

D00LU819

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 26 March 2020

Before :

LORD JUSTICE PATTEN

LORD JUSTICE MOYLAN

and

LORD JUSTICE NEWEY

- - - - - - - - - - - - - - - - - - - - -

Between :

LUTON COMMUNITY HOUSING LIMITED Appellant

- and -

NARGISH DURDANA Respondent

- - - - - - - - - - - - - - - - - - - - -

Mr Jonathan Manning and Ms Stephanie Lovegrove (instructed by Perrin Myddleton) for the

Appellant

Mr Toby Vanhegan and Ms Katie Lines (instructed by Duncan Lewis) for the Respondent

Ms Shu Shin Luh (instructed by The Equality and Human Rights Commission) for the

Intervener

Hearing dates : 4 and 5 February 2020

- - - - - - - - - - - - - - - - - - - - -

Approved Judgment

Judgment Approved by the court for handing down.

Luton Community Housing Ltd v Durdana

Lord Justice Patten :

1. This is an appeal by Luton Community Housing Limited (“LCH”), the claimant in these

proceedings, against an order of HH Judge Bloom dismissing its claim for possession

of premises at 3 Griggs Gardens, Luton (“the Premises”). Possession was sought in

reliance on ground 17 of Schedule 2 to the Housing Act 1988 (“HA 1988”) which

permits the Court to order possession where the landlord was induced to grant the

tenancy by a false statement made knowingly or recklessly by the tenant or someone

acting at the tenant’s instigation. The ground is discretionary so that, even if made out,

the Court must then decide whether it is reasonable to make the order: see s.7(4) HA

1988.

2. The respondent tenant, Ms Durdana, and her husband are former employees of Luton

Borough Council (“the Council”). They have two children, the youngest of whom is now

three years old. I shall call her “A”. She suffers from cerebral palsy. It is also common

ground that Ms Durdana suffers from PTSD as a result of the trauma associated with

A’s birth.

3. In 2009 the respondent applied to the Council for homelessness assistance. The main

housing providers in Bedfordshire operate a joint allocations policy which uses a

banding system to assess housing need. This requires applicants for housing assistance

to complete the Bedfordshire Housing Register Application form (“the BHRA form”)

in which details of their current housing situation and means must be provided.

4. In March 2013 the Council nominated the respondent to LCH for an allocation of

accommodation at the Premises. At the time both the respondent and her husband

worked for the Council. She completed a pre-allocation visit form stating that since

2009 her address had been 41 Maidenhall Road, Luton. In June 2013 both the

respondent and her husband completed the BHRA form and stated falsely that their

current address was 41 Maidenhall Road; that the respondent’s only bank account had

a credit balance of £1,000; that she was living with her parents and had been asked to

leave due to overcrowding; and that she had lived at 34 Highbury Road, Luton from

September 2005 until 2009 and then at 41 Maidenhall Road since that date. LCH

granted the respondent an assured shorthold tenancy of the Premises commencing on 5

August 2013.

5. In fact, at the time when both the visit form and the BHRA form were completed, the

respondent, her husband and children lived in a ground floor flat at 425 Dunstable Road,

Luton under an assured shorthold tenancy. They had also rented another property in

Maryport Road, Luton between September 2001 and March 2012. The respondent’s

husband had another bank account into which he had been paying a second income.

The combined annual income of the respondent’s household amounted to £70,734.40.

The credit balance in an account of hers was more than £6,000.

6. In March 2017 the respondent accepted a caution in relation to three offences of

dishonesty arising from the false information contained in the application forms. Her

husband pleaded guilty at Luton Crown Court to the offence of providing false

information in order to obtain housing. Both have been dismissed by the Council.

7. On 17 May 2017 LCH served a notice seeking possession (“NOSP”) and then

commenced proceedings for possession relying on ground 17. The respondent denied

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all but one of the false statements relied on but accepted that she had made a false

statement about never having had any legal or financial interest in rented property. It

was therefore common ground that ground 17 was made out. But she contended that it

was not reasonable for the Court to make an order for possession having regard to the

effect which a possession order would have on both her and her daughter. She also

alleged that LCH had not performed its duties under s.149 of the Equality Act 2010 by

properly considering in advance the impact on the respondent and A of seeking and

obtaining possession of the Premises.

8. At the trial the judge found that the respondent had made false statements both as to her

accommodation and as to her means and savings. She rejected the respondent’s

evidence that she had forgotten about the £6,000 held in one of her accounts. She also

rejected the respondent’s case that the Council and LCH had not been induced by the

false statements to grant the tenancy. But she was satisfied that the appellant was in

breach of the Public Sector Equality Duty (“PSED”). For this reason the claim, she

held, must be dismissed. In these circumstances, it was not strictly necessary to

consider whether the claim should also fail because it was not reasonable to make the

possession order. But the judge indicated that in her view the fact of the breach of the

PSED did make it unreasonable to order possession because it was at least a possibility

that on a proper consideration by the claimant of all relevant factors the possession

proceedings might not have gone ahead. The judge did not, however, attempt to carry

out that assessment herself.

9. LCH appeals against the judge’s order on three grounds, all of which relate to her

dismissal of the possession claim for non-compliance with the PSED. The respondent

has cross-appealed on the issue of inducement but this has not been pursued. Prior to

the hearing we gave permission to the Equality and Human Rights Commission to

intervene, both orally and in writing, and Ms Shu Shin Luh has appeared on its behalf.

Before I come to s.149 and the issues which arise in this case, it is useful to summarise

what, on the judge’s findings, actually happened.

10. The NOSP which was served on 17 May 2017 had been prepared by Ms Zoe Wilson, a

customer relations manager with LCH. She had worked for LCH since 2016 but had

not been involved in the decision to grant the tenancy. She made a witness statement

and also gave live evidence. In her witness statement she said that LCH had not been

made aware of either the respondent’s or her daughter’s condition during the tenancy

but that, even in the light of those conditions, it was still considered proportionate and

reasonable to seek a possession order because the false information provided in the

application forms had misled LCH and had prevented a more needy and deserving

applicant from being granted a tenancy of the Premises for which they were eligible.

The stock of available social housing is very limited and it would be unfair for the

respondent to be permitted to benefit from her dishonest conduct.

11. To support its case that it had complied with the PSED by carrying out an Equality Act

assessment, LCH relied on a two-page “Equality Act Review” document signed by Ms

Wilson on 20 September 2018. This therefore post-dates the commencement of the

possession proceedings. Ms Wilson explained to the judge that she had prepared the

document after consulting a solicitor who told her what to look at. She had no previous

experience of dealing with Equality Act assessments; did not know what s.149 provided

or what the PSED comprised of; and had not previously considered the PSED in relation

to these proceedings.

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12. The review document sets out six questions and a conclusion. The first paragraph

identifies the nature of the disabilities suffered by the respondent and her daughter but

with no detail as to how they impact on them. The evidence of Ms Durdana in her

witness statement was that the right side of I body is weak and that she cannot use her

right hand. The doctors’ reports which she produced and relied on at trial indicate that

she often falls down, has some difficulties speaking but is otherwise generally fit and

well. She is, of course, still a small child. The report of Dr Korzinski also deals with

the respondent’s disability caused by PTSD. He says that the threat of homelessness

has placed the respondent’s marriage under extreme duress; that her condition and

ability to cope is likely to deteriorate; that she has not yet completed her treatment for

PTSD and that the treatment cannot be completed whilst the conditions of stress and

instability he describes continue.

13. In one of the reports there is mention of the Premises being purpose-built to cater for

A’s disabilities. But Mr Manning has told us that this is not correct. The Premises have

not been specially built or adapted for use by a disabled child and LCH was not asked

to provide such accommodation.

14. Ms Wilson accepted in cross-examination that she did not know what the effect of A’s

disability was on her day-to-day living or what impact their eviction would have on

either A or her mother. This is evident from paragraph 2 of the review document.

Under the heading “What issues are arising as a consequence of the tenant’s disability?”

Ms Wilson has summarised the circumstances in which the respondent and her family

came to be granted the tenancy but says nothing about the effect of an eviction on their

disabilities.

15. Paragraph 3 recognised eviction as “unfavourable treatment” and the review document

then turns to consider whether LCH is pursuing a legitimate aim in seeking an order for

possession; whether the unfavourable treatment is rationally connected to the legitimate

aim; and whether eviction is no more than is necessary to achieve the legitimate aim.

In those sections of the review Ms Wilson summarises the nature of the fraud which

the respondent and her husband perpetrated; its effect in depriving other more deserving

applicants of accommodation; and why eviction would be reasonable and proportionate

in this case. The conclusion is that LCH does consider that it would in all the

circumstances be proportionate to continue the possession proceedings.

16. As the judge observed, the language and contents of parts of this document are very

much those of a proportionality review carried out in order to justify treatment of a

person with a protected characteristic that might otherwise be regarded as

discriminatory: see Equality Act s.19(2). But in this case we are not concerned with

allegations of indirect discrimination. The respondent relies on a breach of the PSED

which is set out in s.149 of the Equality Act. So far as material, this provides:

“(1) A public authority must, in the exercise of its functions,

have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and

any other conduct that is prohibited by or under this Act;

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(b) advance equality of opportunity between persons who

share a relevant protected characteristic and persons who

do not share it;

protected characteristic and persons who do not share it.

(2) A person who is not a public authority but who exercises

public functions must, in the exercise of those functions, have

due regard to the matters mentioned in subsection (1).

(3) Having due regard to the need to advance equality of

opportunity between persons who share a relevant protected

characteristic and persons who do not share it involves having

due regard, in particular, to the need to—

(a) remove or minimise disadvantages suffered by persons

who share a relevant protected characteristic that are

connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant

protected characteristic that are different from the needs of

persons who do not share it;

characteristic to participate in public life or in any other

activity in which participation by such persons is

disproportionately low.

(4) The steps involved in meeting the needs of disabled persons

that are different from the needs of persons who are not disabled

include, in particular, steps to take account of disabled persons'

disabilities.

(5) Having due regard to the need to foster good relations

between persons who share a relevant protected characteristic

and persons who do not share it involves having due regard, in

particular, to the need to—

(a) tackle prejudice, and

(b) promote understanding.

(6) Compliance with the duties in this section may involve

treating some persons more favourably than others; but that is

not to be taken as permitting conduct that would otherwise be

prohibited by or under this Act.”

17. The duty which this section imposes is in many ways aspirational in the sense of

providing encouragement to public authorities in the exercise of their functions to

achieve the objectives set out in s.149(1). The Equality Act 2010 is an amalgam of

earlier legislation dealing, inter alia, with discrimination on grounds of race, sex or

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disability. But the PSED embodied in s.149 is derived from s.49A(1) of the Disability

Discrimination Act 1995 which was introduced by way of amendment in 2006. Its

focus is on the general advancement of equality aims. It is not concerned to prohibit or

regulate conduct which is discriminatory or with the imposition of the duty to make

adjustments, all of which were existing features of the law in relation to disabled

persons and have been continued in the provisions of Part 2 of the Equality Act. Nor

is the duty, at least in terms, one to do anything specific in addition to or independently

of the performance of the functions which the authority is carrying out. As Elias LJ

observed in R (Hurley) v Secretary of State for Business, Innovation and Skills [2012]

EWHC 201 (Admin) at [76], the duty is not a duty to achieve a particular result. The

duty is one to have due regard to the need to carry out the s.149(1) objectives as part of

the discharge of the various functions of the public authority concerned so as to equalise

opportunity and eliminate discrimination. “Due” means appropriate in all the

circumstances: see R (Baker) v Secretary of State for Communities and Local

Government [2009] PTSR 809 at [31]. There Dyson LJ said:

“[31] In my judgment, it is important to emphasise that the s

71(1) duty is not a duty to achieve a result, namely to eliminate

unlawful racial discrimination or to promote equality of

opportunity and good relations between persons of different

racial groups. It is a duty to have due regard to the need to

achieve these goals. The distinction is vital. Thus the inspector

did not have a duty to promote equality of opportunity between

the appellants and persons who were members of different racial

groups; her duty was to have due regard to the need to promote

such equality of opportunity. She had to take that need into

account, and in deciding how much weight to accord to the need,

she had to have due regard to it. What is due regard? In my view,

it is the regard that is appropriate in all the circumstances. These

include on the one hand the importance of the areas of life of the

members of the disadvantaged racial group that are affected by

the inequality of opportunity and the extent of the inequality; and

on the other hand, such countervailing factors as are relevant to

the function which the decision-maker is performing.”

18. The scope for action will therefore vary from case to case depending upon the particular

statutory or other function which is performed and the restrictions or obligations which

may be imposed on the authority by that particular regime. As McCombe LJ said in

Powell v Dacorum Borough Council [2019] EWCA Civ 23 at [44]:

“In my judgment, the previous decisions of the courts on the

present subject of the application and working of the PSED, as

on all subjects, have to be taken in their context. The impact of

the PSED is universal in application to the functions of public

authorities, but its application will differ from case to case,

depending upon the function being exercised and the facts of the

case. The cases to which we have been referred on this appeal

have ranged across a wide field, from a Ministerial decision to

close a national fund supporting independent living by disabled

persons (Bracking) through to individual decisions in housing

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cases such as the present. One must be careful not to read the

judgments (including the judgment in Bracking) as though they

were statutes. The decision of a Minister on a matter of national

policy will engage very different considerations from that of a

local authority official considering whether or not to take any

particular step in ongoing proceedings seeking to recover

possession of a unit of social housing.”

19. Consistently with this, s.149 does not amend the statutory powers and functions of a

public authority prescribed by other legislation. So in this case it does not limit or

qualify the power of a housing authority to seek possession of premises let to persons

with a protected characteristic. But in deciding whether to take or continue such

proceedings the authority must perform the duty of consideration which s.149 imposes

on it.

20. There was some discussion during the hearing of this appeal about the content of that

duty. Looked at simply in terms of s.149(1), the duty is expressed at a high level of

generality. It is common ground that we are concerned only with s.149(1)(b) which

speaks of advancing equality of opportunity: a concept which has no immediately

obvious application to the position of a social housing provider seeking to obtain

possession from even a disabled tenant. But the respondent relies on the extended

definition in s.149(3) and, in particular, (3)(b) which requires the authority to have due

regard to the need to take steps to meet the needs of (in this case) the respondent and

her daughter as disabled persons so far as they are different from the needs of other

non-disabled persons. These steps include, in particular, taking account of their

disabilities: see s.149(4).

21. This is convoluted language but Mr Manning, on behalf of LCH, accepts that these

provisions of s.149(1)(b) and therefore (3) were engaged in this case once the appellant

became aware that the respondent and her daughter were disabled. It was therefore

incumbent on LCH (as the proxy for the Council) to carry out an assessment which

complied with the s.149 duty. But the duty so expressed cannot, he submits, be treated

as one to accord to the respondent and her daughter any particular type of treatment and

must be considered in the context in which it arises. In one sense, as Moylan LJ put to

him in argument, a decision to seek possession, if carried successfully into effect,

cannot be said to meet the needs of either the respondent or of A who will be deprived

of their existing accommodation. But it cannot have been Parliament’s intention, he

submits, that the s.149(1) duty would operate as a complete bar to possession regardless

of the circumstances and, in particular, the reasons for seeking possession. The

language of s.149(3)(b) and (4) with its reference to having due regard to the need to

take steps to take account of a disabled person’s disabilities means, he says, no more

than that. In this context, LCH was required to have proper regard to those disabilities

in deciding whether to continue to seek possession. Those disabilities and their effect

were therefore a factor which mandated specific consideration as part of that decision.

But they were not the only considerations that LCH had to weigh in the balance. Its

established policy of seeking possession in cases such as this where the tenancy is

obtained by deception and the reasons for that policy remain material considerations in

the performance of its housing functions. LCH was therefore required in the final

analysis to decide whether, on the facts of this particular case, it was reasonable and

proportionate to continue to seek possession notwithstanding the disabilities of the

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Luton Community Housing Ltd v Durdana

respondent and her daughter. That, Mr Manning submits, is what LCH did through

Ms Wilson in the Equality Review which it carried out. The fact that she had never

read s.149 and did not know what it required of LCH made no difference if in fact the

review which was carried out met the standards and requirements of the PSED. The

judge found in this case that Ms Wilson did not know how A’s disabilities impacted on

her and had not factored them into the decision to continue with the proceedings. She

had not considered alternatives to seeking possession partly because she considered that

it was likely that the respondent would be able to obtain other accommodation in the

private rented sector. The position of LCH was that where the tenancy had been

obtained by fraud there were no circumstances in which it would not seek to obtain

possession. The judge accepted on the authority of this Court in Hurley that the weight

to be given to competing considerations was a matter for the decision-maker. She

quoted from the judgment of Elias LJ at [78] where he said:

“The concept of “due regard” requires the court to ensure that

there has been a proper and conscientious focus on the statutory

criteria, but if that is done, the court cannot interfere with the

decision simply because it would have given greater weight to

the equality implications of the decision than did the decision

maker. In short, the decision maker must be clear precisely what

the equality implications are when he puts them in the balance,

and he must recognise the desirability of achieving them, but

ultimately it is for him to decide what weight they should be

given in the light of all relevant factors. If Ms Mountfield's

submissions on this point were correct, it would allow unelected

judges to review on substantive merits grounds almost all aspects

of public decision making.”

23. But she said:

“50. Whilst the Claimant is right that the weight to pay to the

information is a matter for the Claimant, the Claimant has to

show that it has paid “due regard” to the equality aims as set out

in section 149 and has done so “in substance, with rigour and

with an open mind”. I accept, of course, that the Claimant could

comply with the duty without knowing about it. One can

understand how this could arise when assessing whether

someone is in priority need under the Housing Act 1996 as the

whole focus is on the extent of the disability and the

consequences of the same. However in this instance the focus

was on the eviction and the policy of the Claimant was to seek

eviction where someone has lied to obtain a tenancy. Ms Wilson

stated that she had not considered any other alternatives to

possession and that where fraud was concerned there were no

circumstances in which the Claimant would not consider taking

the property back. Whilst that may well be a reasonable policy,

it has to be considered in the light of the PSED where the focus

is on the impact that the decision to evict will have on the

disabled person(s). It may be proportionate to seek eviction but

that is not the same as asserting that due regard has being paid to

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section 149 and the equality aims have been considered. It is only

once the court is so satisfied that the weight to attach to the

factors informing the decision becomes a matter for the Claimant

only.

51. I am not satisfied that the Claimant has rigorously considered

the duty in the sense that it has properly considered the impact

of its decision to seek possession on the equality objectives and

the need to promote those aims. The clear evidence of the only

witness for the Claimant was she did not understand or know

about the duty. The only document relevant was not focused on

the issue of the PSED at all. There is nothing other than a passing

reference to and acknowledgment that the Defendant and her

daughter have been diagnosed with disabilities. That does not

show due regard is being paid to the same. Ms Wilson had no

idea how extensive the disability of the child was and indeed it

is not clear she knew or considered the extent of the PTSD of the

Defendant and how that would be impacted by eviction. Indeed,

I am not satisfied that the Claimant can be said to have had an

open mind as her evidence was that the only option was eviction.

I therefore have concluded I am not satisfied that the Claimant

has established that it considered its duty under PSED at all and

therefore the Claimant is in breach of the same.”

24. The judge then turned to consider the factors relevant to the s.149 assessment which

ought to have been carried out:

“54. In this case, unlike Forward, whilst I have found that the

Defendant lied about obtaining the premises, there is clear

evidence of disability before the court which was available to the

Claimant. The evidence of Dr Korzinski regarding the Defendant

was clear that she had PTSD and it was accepted that [A] has

cerebral palsy. There was substantial evidence that this impacts

on her right arm and leg and that the child has a “massive brain

defect” albeit her motor system is quite good. The Defendant

receives DLA for caring for her daughter. The expert report

notes that the early years development of a child with cerebral

palsy were critical in laying the foundations for all areas of

learning and development and homelessness would impact at

this critical stage of her development. Ms Lovegrove argued that

the evidence regarding [A] was limited and there were no

adaptations at the home and the Claimant knew this and in effect

no further enquiries would make a difference. However as

against that, the Claimant has never investigated the known

disabilities or considered the extent of the same or the impact

that eviction would have given the disabilities that the Defendant

and [A] have. Further the oral evidence of the Defendant was

that the reason there were no adaptations was that the house was

built in such a way that it negated the need for the same and

suited her daughter’s disabilities. In particular the wide stairs

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with handles on both sides meant that [A] could manage

independently to use the stairs; further there was a WC

downstairs. There was also evidence that the impact of losing

their home could have a seriously negative impact on the

Defendant’s mental health. The Claimant has not considered

these factors and assessed the need in particular to advance

equality of opportunity between the Defendant and her daughter

and those who are not disabled and whether there were other

steps that needed to be taken given their respective disabilities. I

am not satisfied that I can conclude that on the facts of this case

the outcome would inevitably be the same if the PSED had been

complied or was complied with. Whilst it is highly relevant that

the Defendant has lied repeatedly to obtain housing and not been

honest with the court, it does not inevitably mean that she must

lose her home. It appears likely that this is the outcome. One

could even argue that it appears highly likely that she will lose

it. But it is arguable that the disabilities of the Defendant and [A]

might make a difference and lead to a different approach being

taken in order to meet the equality aims.”

25. Ms Lovegrove had argued that the Court could still make a possession order and leave

the PSED to be performed at the warrant stage before the order for possession was

enforced but the judge rejected this. It would, she said, create the risk that LCH, armed

with the possession order, would not approach the evaluation exercise required with an

open mind. Given that a breach of s.149 operated as a substantive defence to the claim

for possession and had been established in this case, the only proper course was to

dismiss the claim.

26. The judge was, I think, right to conclude that there had been a breach of the PSED in

this case. Although it is theoretically possible for the duty to be complied with in

ignorance of what it consists of, such cases are likely to be rare and this is not one of

them. Ms Wilson, by her own admission, had not taken into account the likely effect

of the disabilities of the respondent and A in relation to their proposed eviction from

the Premises, although at the time when the decision was made LCH knew what the

disabilities were; knew that they were being relied on as a defence to the proceedings;

and had received copies of the medical reports I referred to earlier.

27. Although the reasonableness or proportionality of continuing to seek possession may

be an appropriate way of characterising the ultimate decision to be made, I think that

Mr Vanhegan is right to submit that the decision needed to be preceded by more than a

proportionality assessment and that what Ms Wilson should have carried out was the

open-minded conscientious enquiry referred to in the authorities.

28. In these circumstances, it becomes necessary to consider Mr Manning’s alternative

argument which is that even had Ms Wilson scrupulously carried out the enquiry, which

she should have done, the ultimate decision is highly likely to have been the same.

29. Although derived from s.31(2A) of the Senior Courts Act 1981 which deals with the

refusal of relief on an application or judicial review, it is now well established that the

Court will refuse to dismiss a claim for possession where a breach of s.149 is relied on

by way of defence if satisfied that it is highly likely that the outcome would not have

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been substantially different had no breach of the duty occurred: see Aldwyck Housing

Group Ltd v Forward Ltd [2019] EWCA Civ 1334 at [25].

30. That case concerned a claim for possession against an assured tenant who had

committed various criminal offences including drug dealing at the demised premises.

Possession was sought under Ground 14. The defendant was physically disabled. The

claimant had conducted a PSED assessment before trial but it was conceded to have

been inadequate because no medical evidence had been obtained about the defendant’s

disabilities. The High Court dismissed an appeal against a possession order on the

ground that although a breach of the PSED could found a defence to the action, the

carrying out of an appropriate PSED assessment would still have resulted in the claim

for possession going ahead.

31. Longmore LJ rejected a submission by the tenant that once a breach of the PSED was

admitted or established there was no room for the Court to exercise its discretion to

grant relief on the claim. He said:

“21. I would for my part decline to accept the proposition that,

as a general rule, if there is a breach of the PSED, any decision

taken after such breach must necessarily be quashed or set aside

or even the proposition that there is only a narrow category of

cases in which that consequence will not follow.

22. It may well be right that major governmental decisions

affecting numerous people may be liable to be quashed if the

government has not complied with the PSED. Thus in R (Hurley)

v Secretary of State for Business, Innovation and Skills[2012]

HRLR 13, an application to quash Regulations raising fees for

university students when the department had not, in some

respects, complied with the PSED, Elias LJ said (para 99): “It

will be a very rare case, I suspect, where a substantial breach of

the PSEDs would not lead to the quashing of a relevant decision

…” The Divisional Court of the Queen’s Bench Division in that

case held that there had in fact been substantial compliance and,

in the event, did not quash the Regulations.

23. In R (Bracking) v Secretary of State for Work and Pensions

[2014] Eq LR 60, a decision by the Minister for Disabled People

to close the Independent Living Fund which provided assistance

to disabled persons for whom the consequence of closing the

fund would have a very grave impact, was quashed for failure to

comply with the PSED in reliance (inter alia) on [2020] 1 WLR

584 at 593 the above dictum of Elias LJ. In delivering the first

judgment, McCombe LJ said (para 60):

“It seems to have been the intention of Parliament

that these considerations of equality of opportunity

(where they arise) are now to be placed at the centre

of formulation of policy by all public authorities,

side by side with all other pressing circumstances of

whatever magnitude.”

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24. These decisions cannot be applied indiscriminately to cases

in which a decision is made affecting an individual tenant of a

social or local authority landlord as recognised by McCombe LJ

himself in Powell v Dacorum Borough Council [2019] EWCA

Civ 23; [2019] H.L.R. 341 (para 44):-

…

In the context therefore of a typical possession action the court,

while having regard to the importance of the PSED, will also

have available to it the facts of the particular dispute and be able

to assess the consequence of any breach of the duty more easily

than in the context of a wide-ranging ministerial decision.

25. Mr Vanhegan submitted that, apart from the two categories

of case he identified, the court should quash a decision made

when the PSED is not complied with, otherwise local authorities

will have no incentive to comply with the duty and no

opportunity to learn from their breach of duty. For my part, I

would resist the notion that the court should act as some sort of

mentor or nanny to decision-makers. As Laws and Treacy LJJ

said in R (West Berkshire District Council) v Secretary of State

for Communities and Local Government [2016] 1 WLR 3923, in

which a change in ministerial policy for the provision of

affordable housing had been made without initially complying

with the PSED (para 87):

“Nothing we say should be thought to diminish the

importance of proper and timely compliance with

the PSED. But we have strong reservations about

the proposition that the court should necessarily

exercise its discretion to quash a decision as a form

of disciplinary measure. During the course of

argument, Mr Forsdick accepted that if an

assessment, subsequently carried out, satisfied the

court, there would be no point in quashing the

decision if the effect of doing that and requiring a

fresh consideration would not have led to a different

decision. We think [2020] 1 WLR 584 at 594 this

was a correct concession. The court’s approach

should not ordinarily be that of a disciplinarian,

punishing for the sake of it, in these circumstances.

The focus should be on the adequacy and good faith

of the later assessment, although the court is entitled

to look at the overall circumstances in which that

assessment was carried out.”

Rather than acting as some sort of mentor the court should, in

deciding the consequence of a breach of PSED, look closely at

the facts of the particular case and, if on the facts it is highly

likely that the decision would not have been substantially

Judgment Approved by the court for handing down.

Luton Community Housing Ltd v Durdana

different if the breach of duty had not occurred, there will

(subject to any other relevant considerations) be no need to quash

the decision. If, however, it is not highly likely, a quashing order

may be made.”

32. The decision of this Court in Forward came after the judgment in the present case,

although Judge Bloom was aware that permission had been granted for a second appeal.

Mr Manning submits that [54] of her judgment contains a material misdirection.

Having explained why she considers that a breach of the PSED occurred, she addressed

the consequences of that by asking herself not whether it was highly likely that on a

proper consideration of the relevant factors LCH would have made the same decision,

but rather whether such a conclusion was inevitable. That, says Mr Manning, sets the

bar too high. Moreover, she goes on to express the view that it is likely or even highly

likely that the outcome would be the same. This is relied on as indicating that had the

judge asked herself the right question she would have answered it in favour of the

claimants.

33. I agree that the judge has misdirected herself and we must therefore decide whether, on

the facts of this case, it is highly likely that a proper PSED assessment would have not

led to a different decision. Mr Vanhegan stressed that the correct approach to this

question is not to ask whether Judge Bloom is highly likely to have reached a conclusion

in the claimant’s favour but what the decision-maker would have decided had it acted

in accordance with s.149. I accept that, although Judge Bloom’s own view on that

matter is not without significance. It is also true, as Mr Vanhegan says, that we have

no direct evidence as to what LCH’s decision would have been. But we do know what

the medical and other evidence relied on by the respondent was and what the

countervailing policy and other considerations taken into account by LCH were. Those

are set out very clearly in the Equality Review which Ms Wilson prepared. The task

for us is to form an objective view based on that material as to whether it is highly likely

that the decision would have been the same. If it is not possible to establish such a

conclusion with that degree of certainty then the judge’s order must stand. Mr Manning

also submitted that the judge had been wrong not to adjourn the proceedings once she

was satisfied that a breach of the PSED had occurred so as to allow his client to re-

consider the matter afresh in a way which complied with s.149. But the judge was

never asked to take that course nor is her failure to do so one of the grounds of appeal.

34. The evidence adduced by the respondent indicates that A has a serious disability caused

by cerebral palsy which imposes physical limitations on her ability to move freely

around and on her ability to communicate. But she is still a very young child and at the

date of the decision in 2018 was even younger. The reports do not suggest that she is

at the stage of development where she requires any particular facilities and they confirm

that her general state of health is good. It cannot be said on the basis of that evidence

that a move to other accommodation will impact on her disproportionately as a result

of those disabilities. But there may be some impact as there will be as a result of any

move. The respondent is in an anxious and stressed state due to what has occurred and

has not been able to finish her course of treatment. The uncertainty and disruption

involved in a move will clearly have an impact on her. How severe that will be is likely

to depend on the circumstances. I proceed on the basis that it will not be negligible but

the evidence does not suggest it will be irreversible.

Judgment Approved by the court for handing down.

Luton Community Housing Ltd v Durdana

35. The question therefore is whether LCH, in paying due regard to this evidence and in

considering whether it was still appropriate to seek possession, is highly likely to have

made the same decision. My own view is that it would. Housing authorities operate

under severe constraints in terms of available accommodation. There is no question

that had the respondent and her husband provided honest answers to the questions in

the application form they would not have been granted this tenancy. The Premises

would have been allocated to other qualifying applicants of whom there were and are

many. The respondent could have afforded to have rented accommodation in the

private sector and should have done so.

36. In the face of a continuing shortage of public housing, LCH is justified in operating a

policy of seeking to remove tenants who have obtained their accommodation by

deception. The duties owed to other homeless applicants support and justify that policy.

Mr Vanhegan has not sought to contend otherwise on this appeal. The weight to be

accorded to these policy considerations as opposed to the position of the respondent

and her daughter as disabled persons is, of course, a matter for LCH as the decision-

maker but it seems to me to be completely unrealistic to suggest that the balance of

reasonableness would in this case have come down in favour of the respondent. This

was not a case where the medical evidence suggested that the impact of eviction on the

respondent and A as disabled persons would have been either acute or disproportionate.

And nothing else could have acted as a sufficient counterbalance to the social objectives

which underpinned the policies of LCH. Even after paying due regard to these

disabilities LCH could lawfully have decided to continue with the claim for possession

and are highly likely to have done so. For these reasons, I would allow the appeal

against the judge’s order dismissing the claim.

37. That leaves the subsidiary question of what should now happen in the proceedings. Mr

Manning submitted that we could ourselves make an order for possession but I do not

think that would be appropriate. Although for the reasons which I have given the judge

was wrong to have dismissed the claim for a breach of the PSED, had she rejected that

defence, she would still have needed to consider whether it was reasonable in all the

circumstances to make the order. The judge in [58] of her judgment expressed the view

that it would not have been reasonable to make the order because the claimant had not

complied with the PSED but she declined to carry out any appraisal of her own as to

whether it would be reasonable to make the order. The consideration of reasonableness

which the Court is required to carry out under s.7(4) HA 1988 will undoubtedly bring

into account many of the factors I have already referred to but it will be a consideration

of matters as they stand now rather than in 2018 and the scope of the enquiry may be

wider. In any event, it is not something which this Court is equipped to carry out on

the material available for the purposes of this appeal.

38. I would therefore allow the appeal but remit the claim back to the judge to decide

whether it is reasonable to make the order for possession.

Lord Justice Moylan :

39. I agree.

Lord Justice Newey :

40. I also agree.

Judgment Approved by the court for handing down.

Luton Community Housing Ltd v Durdana