Possession order stands despite failure to consider equality law

The High Court has ruled, in the case of Forward v Aldwyck Housing Group Ltd, that a possession order made in favour of a housing association pursuant to an assured tenant’s anti-social behaviour should stand, even though there had been no consideration of the Equality Act 2010 s.149.

In this case, the tenant was unable to support his argument that his physical and mental impairment had been exploited by those undertaking drug dealing from his flat.

The possession order related to 34 Wilmington Close, Watford, let to the appellant under an assured tenancy which began on 8 November 2013. On 19 July 2017, possession was sought on grounds 12 and 14 Schedule 2 Housing Act 1988.

The appellant agreed that he had been a class A drug user consuming heroin and crack cocaine at his flat but, with one exception, denied that he had misbehaved. He said others had dealt drugs from his flat but were not there with his permission. He claimed that he was vulnerable to exploitation by reason of physical and mental disability. These problems arose from a degenerated disc resulting in severe pain and mobility difficulties as well as depression, anxiety and a personality disorder. He was able to rely on evidence from two PCs who expressed their opinion that the appellant and his flat had been used by others for drug dealing. The appellant thus disassociated himself from the anti-social behaviour associated with his flat; and raised defences based on disability discrimination, indirect discrimination and breach of public sector equality duty (PSED).

The defence was that alleged anti-social behaviour, at or connected to his flat, must have been a consequence of his mental impairment. The appellant being a disabled person under the Act, it was necessary for the respondent to have regard to the PSED in deciding whether to seek a possession order.

No Equality Act assessor was appointed before the trial was heard. No PSED assessment was carried out prior to the issuing of the notice, but one was prepared by the time of the trial. The author of the assessment was cross-examined. By the closing submissions there was common ground that there had been a failure to have due regard to the respondent’s PSED. Nonetheless the respondent continued to seek possession on the basis that the breach was not material, there was no other viable option, and the application for possession was the only proportionate response.

The appeal judge was satisfied that the decision to take possession proceedings did strike a fair balance between the claimant’s need to reduce anti-social behaviour and nuisance from the tenant and his visitors, and the disadvantages that the tenant would suffer as a disabled person by reason of his eviction. The judge was also satisfied that it was reasonable in the circumstances to make a possession order. He also said that, in the circumstances, suspension of the order was not appropriate.

The judge said that the burden was on Mr Forward to show that there had been or was likely to be an improvement in his behaviour since the matters the subject of specimen allegations and that “there was very little evidence to suggest that Mr Forward’s behaviour is likely to be better in the future than it was in the past.”