Powell v Dacorum Borough Council [2019] EWCA Civ 23

Court of Appeal
24 January 2019

The Court of Appeal has held that a local authority had not breached the public sector equality duty when seeking to enforce a suspended possession order due to a tenant's criminal activity at the property.

The local authority, Dacorum Borough Council, had sought possession of Mr Powell’s flat due to non-payment of rent and for breaching his tenancy agreement after he was convicted for committing drug offences at the property. Mr Powell appealed, claiming that repossession would be unreasonable because he suffered from depression, anxiety and hepatitis C. However, he made no reference to the public sector equality duty under the Equality Act 2010. The Court issued a suspended possession order, which would only be enforced if Mr Powell failed to observe the terms and conditions of the tenancy agreement. Three months later, drugs were found at his flat and possession proceedings were issued.

Mr Powell applied to suspend the proceedings, claiming that his pending treatment for hepatitis C could not proceed unless he was suitably housed. Again, he made no reference to the public sector equality duty. The local authority’s anti-social behaviour officer carried out a public sector equality duty assessment, which found that Mr Powell was capable of finding alternative accommodation when necessary and concluded that his repeated criminal behaviour meant that it was proportionate and reasonable to seek possession. The District Court agreed that possession was proportionate and that the public sector equality duty assessment did not provide grounds for suspending the possession. Mr Powell’s appeal was dismissed and he subsequently appealed to the Court of Appeal

The Court of Appeal, in dismissing the appeal, said that the local authority had sufficiently considered Mr Powell’s circumstances during the possession proceedings. The local authority had not breached the public sector equality duty, and, even if it had, it would have remedied this when carrying out a proportionality review when possession was sought.

The decision highlights that if the public sector equality duty is not raised when the order for possession is made, the tenant will find it difficult to raise the public sector equality duty later on unless there is a change in the tenant’s circumstances (e.g. the state of his health). However, the social landlord can rectify this by still carrying out a public sector equality duty assessment. Social landlords should ensure that they properly consider their public sector equality duty duties and ensure that policies are in place.

A copy of the judgment is here.

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

Court of Appeal
4 February 2019

The Court of Appeal has held that a local authority failed to assess properly whether accommodation was suitable for a resident with disabilities.

Mr Kannan appealed against a County Court ruling that had upheld the London Borough of Newham's decision that temporary accommodation provided to him was “suitable” within the meaning of section 206 of the Housing Act 1996. Mr Kannan, who had medical conditions that affected his mobility and was “disabled” for the purposes of the Equality Act 2010, had complained that his first-floor flat was unsuitable because there was no shower and access to the flat was by an external staircase. After reviewing the suitability of his accommodation, the local authority concluded that the accommodation was suitable for his needs. The County Court also agreed. Mr Kannan appealed.

The Court of Appeal, in allowing the appeal, held that the local authority's review of its decision was flawed. The reviewing officer had failed to consider that accommodation which might be suitable in the short term could become unsuitable over time. He had also not given sufficient consideration to the public sector equality duty when assessing Mr Kannan’s disability and its impact on his housing needs.

This decision will be of interest to local housing authorities, as it sets out some of the factors that need to be taken into account by reviewing officers when looking at the suitability of accommodation.

A copy of the judgment is here.

Z & Ors, R (On the Application Of) v (1) Hackney London Borough Council and (2) Agudas Israel Housing Association [2019] EWHC 139 (Admin)

High Court
4 February 2019

The High Court has held that a housing association had not unlawfully discriminated against non-Orthodox Jewish applicants by allocating social housing only to members of the Orthodox Jewish community.

The Claimants (a mother and four children) applied for judicial review of a decision by Hackney London Borough Council and Agudas Israel Housing Association - a Jewish housing association - concerning the allocation of social housing properties controlled by the aforementioned housing association. Hackney London Borough Council’s housing allocation scheme prioritised those residents with the most need. Under the allocation scheme, housing associations were independent and had the final decision on whether to accept local authority nominations. The Claimants were non-Jewish and not members of the Agudas Israel Housing Association, although they had lived in the borough all of their lives and had been given the highest possible priority for rehousing. The borough had a large Orthodox Jewish community and Agudas Israel Housing Association allocated properties to members of this community only.

The Claimants argued that the policy unlawfully discriminated against non-Jewish applicants by allocating social housing only to Orthodox Jews.

The High Court, in dismissing the appeal, held that the defendants had been justified in taking “positive action” under the Equality Act 2010 because members of the Orthodox Jewish community suffered substantial disadvantages, harassment and had different needs. The Orthodox Jewish way of life requires members to live in a community, helping to boost their security and reduce anti-semitic abuse Agudas Israel Housing Association was legally entitled to discriminate in such a way under the Equality Act 2010.

A copy of the judgment is here.

Forward v Aldwyck Housing Group Limited [2019] EWHC 24 (QB)

High Court
11 January 2019

The High Court has dismissed an appeal against a possession order granted by the County Court, ruling that it had been entitled to use the order as a proportionate means of achieving a legitimate aim despite insufficiently considering matters under the Equality Act 2010.

Mr Forward, an assured tenant, was accused of anti-social behaviour (drug use) and a possession order was made in favour of the housing association, Aldwyck Housing Group. He appealed the decision, claiming that he had a physical and mental disability, and had been unable to prevent other people accessing his flat to deal drugs. Aldwyck Housing Group had failed to carry out an adequate public sector equality duty assessment under the Equality Act 2010 before issuing a possession order application; however, the Court did not believe that Mr Forward was mentally impaired and found no link between his physical disability and the anti-social behaviour. Possession was granted on the grounds that it was proportionate and reasonable. Mr Forward appealed.

The High Court, in dismissing the appeal, held that the inadequate public sector equality duty assessment did not necessarily mean that the appeal should succeed - after all, there was no clear evidence of Mr Forward’s disability and the County Court had been entitled to take into account the evidence that Mr Forward had been complicit in the drug use and drug dealing in his flat. The enforcement of a possession order was a proportionate means of achieving a legitimate aim.

This decision will be of particular interest to registered providers and local authorities. Mr Forward lost his appeal because he was unable to prove that he had a mental disability. However, the ruling also highlights the need for social landlords to comply with the public sector equality duty - or face the risk of having their claim for possession dismissed.

A copy of the judgment is here.

R (on the application of TW) v Hillingdon London Borough (No 2) [2019] EWHC 157 (Admin)

High Court
8 February 2019

The High Court has held that a local authority’s review of the impact of its social housing allocation policy was insufficient, as it did not properly address its impact on the Irish Traveller community.

The Claimant (an Irish Traveller) applied for judicial review of Hillingdon London Borough’s use of a 10-year residence qualification in its social housing allocation policy, following earlier proceedings in which the residence qualification had been declared unlawful. The Claimants had been living in temporary accommodation in Hillingdon, which was in poor condition, and challenged the local authority’s social housing allocation policy, which included a condition that only households with at least 10 years’ continuous residence in-borough could qualify to join the three-welfare-based bands of its housing register. The local authority contended that the residence qualification was a proportionate means of achieving legitimate aims. However, the High Court held that the residence qualification was unlawful, as it had not attempted to assess the extent of the disadvantage on Irish Travellers or considered whether it was justified (Irish Travellers were significantly less likely to have resided in a particular location in the UK continuously for at least ten years).

The Claimant brought proceedings, claiming that the local authority had failed to comply with the judgment. The local authority subsequently re-housed the Claimant and reviewed the effect of the policy on Irish Travellers undertook a review of the effect of the policy on Irish Travellers.

The High Court, in allowing the Claimant’s application, held that the review did not provide sufficient evidence that the local authority had assessed the policy’s impact on the Irish Traveller community: there was no proper reasoning as to why no expert advice had been sought by the local authority in the review, and the local authority had not sufficiently reviewed its own case files on Irish Travellers.

A copy of the judgment is here.

London Borough of Barking & Dagenham (17 018 093)

The Local Government and Social Care Ombudsman
22 October 2018

The Local Government and Social Care Ombudsman has upheld a complaint against the London Borough of Barking and Dagenham for failing to comply with section 212 of the Housing Act 1996.

A woman and her three children were placed in temporary accommodation by the London Borough of Barking and Dagenham, as it owed the main homelessness duty to her. The woman was later imprisoned for a year and during this time, the local authority disposed of her personal belongings (the woman had been unable to find someone to store her belongings and she could only offer a small contribution towards the local authority’s weekly storage costs).

The Local Government and Social Care Ombudsman found that the local authority had inflicted a “serious injustice” to the woman and her children - it had not complied with its duty to notify the woman of its decision to dispose of her family's belongings and had dismissed her offer to contribute towards storage costs. It ordered the local authority to pay the woman £7,500 and write off any outstanding storage charges.

The decision highlights the need for local authorities to comply with their housing duties under the Housing Act 1996.

A copy of the decision is here.