Metropolitan Housing Trust Limited v TM [2021] EWCA CIV 1890

In a claim for possession, Metropolitan Housing Trust (MHT) sought a possession order against their tenant, TM. TM was an assured tenant in supported housing and he suffered from schizoaffective disorder and treatment-resistant paranoid schizophrenia.

MHT sought possession because of a several incidents of anti-social behaviour including exposing himself to a female resident and also seriously assaulting a carer. TM did not have capacity to conduct litigation and his father acted as his litigation friend in defending the possession claim.

TM defended the claim on the basis that MHT had not complied with its duty under Section 149 of the Equality Act (often known as the Public Sector Equality Duty or PSED for short).

At the initial Trial of the claim, MHT were granted possession and, the defences raised (including the PSED) were dismissed. The Trial Judge did however stay the enforcement of a possession order until a later date in order to try and find him suitable alternative accommodation because of TM’s vulnerabilities.

Consideration of the PSED

MHT had considered the PSED before proceedings initially began.

TM’s defence also relied on the fact that MHT should have re-assessed the PSED once they had a further expert report, which was obtained whilst proceedings were ongoing. This was on the basis that the PSED is a continuing duty. There were other defences raised but this was the one which was considered in more detail on appeal.

During the course of the first Trial, MHT’s Anti-Social Behaviour Officer was cross-examined about this and concluded that he would have made a different decision about continuing with the claim if he had known of the expert’s report. The Trial Judge held that the reassessment in the witness box counted for the purposes of the PSED and, despite the ASB Officer's comment about a change of approach, the Trial Judge found that the assessment had been carried out and allowed possession on this basis.

Appeals

There was then an appeal to the High Court on the basis of a breach of the PSED, the High Court dismissed the appeal. This led to a Trial in the Court of Appeal.

The Court of Appeal decided that the PSED needed to be carried out with an open mind and accordingly, it was not possible for a witness at Trial to approach this question in a fair way. Accordingly, the fact that there had been a reassessment in witness evidence at Trial could not stand. The Court of Appeal also commented on the juxtaposition between the ASB Officer's concession in the witness box about not continuing with the claim, and the original Trial Judge's finding that MHT had complied with the requirements of a PSED assessment and that they would have continued with proceedings in any event on that assessment.

The appeal in the Court of Appeal was accordingly upheld.

Conclusions

Although this decision went against MHT, and tenant advisors may rely on this decision to support advancing further PSED defences, it should be noted that the facts of this case were very specific. This is especially true about how and when the PSED was reassessed by MHT.

It has been established law for some time that the PSED is a continuing duty, and if pertinent new material arises there should be a reassessment. This case illustrates that the closer to Trial this reassessment takes place, or if it does not take place until Trial, the more likely the Court is to find that it was not considered with an open mind.

However, it is also worth nothing from this judgment that the Court of Appeal said that a breach of the PSED before proceedings is not an automatic defence to possession claims, especially where it can be proven that any defect would not have had a material effect on the decision made.

Housing providers should ensure that changes in their knowledge of the tenant/defendant’s disability or vulnerabilities should prompt a fair reassessment. Any such reassessments should not be left until the Trial.