Possession claim dismissed against occupant with no second succession rights due to Council’s failure to comply with the Public Sector Equality Duty

On 25 January 2024, District Judge Rippon dismissed a claim for possession by the London Borough of Havering (Havering) against Miss Green who was a disabled occupant in possession with no security of tenure following the death of her parents. The claim was dismissed on the basis that Havering had not complied with the Public Sector Equality Duty (PSED).

Factual background and the proceedings

An introductory tenancy had been granted jointly to Miss Green’s parents in January 2008, becoming a fully secure tenancy in March 2009. Miss Green and her brother had resided at the property with their parents since the tenancy began. Miss Green was diagnosed with a neurodevelopmental disorder (ASD) with symptoms of depression, anxiety and OCD trains impacting on her mood and emotions. She relied on her brother for assistance with day-to-day activities. 

In 2011, Miss Green’s mother passed away and her father succeeded to the tenancy as sole tenant by way of survivorship. In 2018, Miss Green’s father passed away meaning that a succession had taken place and no further succession rights existed for Miss Green. 

Miss Green’s brother applied to succeed to the tenancy, but Havering informed him that he was not entitled to succeed and Havering served a Notice to Quit (NTQ).

A claim pursuant following expiry of the NTQ was issued some 3 years later. At the first hearing of the claim, Miss Green was added to the proceedings and she went on to file a defence on the following bases:

1. The NTQ was invalid since it was addressed to the wrong property;

2. Havering were indirectly discriminating against Miss Green on grounds of sex and disability pursuant to section 19 of the Equality Act 2010;

3. Havering had failed to comply with the PSED pursuant to section 149 of the Equality Act 2010;

4. Possession would breach Miss Green’s Article 8 rights; and

5. Havering had failed to comply with their Tenancy Policy which required them to consider granting a discretionary tenancy where there are exceptional circumstances on a case-by-case basis, including where there are significant vulnerabilities and disabilities. 

Judgment

In his judgment, District Judge Rippon was not persuaded that the wrong address invalidated the NTQ nor that Havering had failed to comply with the identified elements of the Tenancy Policy. However, the Judge considered that Havering had failed to comply with the PSED for numerous reasons. The following matters were relevant:

1. A housing officer attended the Property in 2018 and found Ms Green in occupation showing signs of nervousness and stress. It should have been clear at that point that there was potential vulnerability which should have been considered. Havering were on notice of a potential disability. Nothing of substance was reflected from that point and the claim was then issued 3 years later.  

2. Although the pandemic did impact on services, this was not a sufficient excuse to take no steps of substance in relation to Miss Green’s personal circumstances. Havering’s housing officer accepted nothing was done and it should have been. 

3. After proceedings had commenced, a defence raising protected characteristics, indirect discrimination and breach of the PSED was served by Miss Green. The defence had raised particular vulnerabilities requiring sharp focus and consideration with an open mind. Roughly a year after the statements of case, an expert report from a psychiatrist was obtained setting out Miss Green’s disabilities and vulnerabilities in more detail. Again, at this point, Havering should have considered the report and any relevance it had to these proceedings. No questions had been asked of the expert psychiatrist.

4. Notwithstanding these requirements, nothing of substance was done despite the continuing nature of the PSED. Havering was required to consider the PSED each time a new piece of information was disclosed relevant to the PSED considerations and the failure to do so each time made it clear that there had been a wholesale lack of compliance with the PSED. 

5. The judge accepted the difficulties in the housing officers’ job, the lack of staff, funding and resources. He appreciated that Havering staff had numerous properties to manage. However, he found that none of this provided an excuse for failing to have due regard to the PSED in Miss Green’s case. 

The Judge accepted that in certain circumstances breaches of the PSED can be substantially cured. However, in this case, Havering’s first housing officer had accepted that had they known all the matters raised during trial they would not have proceeded. Both Havering’s witnesses did not believe an outright possession order was proportionate in the circumstances. The PSED must be exercised with substance, rigour and an open mind. Each new revelation in the case further highlighted that the Public Sector Equality Duty (PSED) was relevant, yet it was consistently unmet. Very little effort was made to remedy the lack of compliance. 

The Judge considered whether Havering’s decision to pursue possession would have been the same had Havering complied with the PSED. The Judge held that it was possible, however, he was a long way from being satisfied that it was highly likely that it would have been the same. Accordingly, the Judge dismissed the claim for possession due to non-compliance with the PSED. As a result, the Judge considered it unnecessary to consider the other remaining pleaded defences. 

Matthew Lee, instructed by Martin Hall of Sternberg Reed Solicitors, represented the successful occupant.