Case Law Update : Reading Borough Council v Holland 2023 EWHC 1902 (Ch)

In this recent case, the High Court considered the application of the Public Sector Equality Duty ("PSED") in housing possession proceedings and the proportionality of the actions taken by housing providers against vulnerable tenants.

Background

Ms Holland held an introductory tenancy in sheltered housing with Reading Borough Council. Reading issued possession proceedings under s127 Housing Act 1996, alleging anti-social behaviour. Reading said that Ms Holland's behaviour had been causing issues for Reading from the outset of the tenancy and had a significant impact on the other residents within the block, as well as on those managing and providing services to the block. The behaviour, Reading said, amounted to anti-social behaviour and breaches of her tenancy. As the property was part of sheltered accommodation in an over 55's block, many other residents were elderly and vulnerable themselves.

In an introductory tenancy case, the Court must make a possession order if a notice complying with the requirements set out at s128 HA 1996, has been served correctly. The court cannot consider whether it is reasonable to make a possession order, and cannot suspend the order. As there was no challenge to the validity of the notice, Ms Holland could only defend the case under the Equality Act, or on public law grounds such as human rights or conventional judicial review.

Ms Holland was diagnosed as having Emotionally Unstable Personality Disorder ("EUPD"). The judge in the first instance had benefit of expert evidence and the expert considered Ms Holland to have a disability within the meaning of S6 Equality Act 2010, and further, that there was a connection between her condition and the behaviour that led to the service of the notice. Ms Holland's representative had wanted to put additional questions to the expert but Reading had refused. These additional questions would ask the expert to consider a) the effect the proceedings and threat of homelessness would have on Ms Holland in light of her disability and b) the impact homelessness would have had on Ms Holland in light of her disability.

S15 of the Equality Act 2010 defines discrimination arising from disability, whereby a person discriminates against a disabled person if (a) they are treated unfavourably because of something arising in consequence of their disability and (b) it cannot be shown that the treatment is proportionate means of achieving a legitimate aim. Further, under the PSED (at s149 of the Act) a public authority in exercise of its functions must have due regard to the need to eliminate discrimination and any other conduct under the Act, advance equality of opportunity between those with a protected characteristic and persons who do not share it as well as foster good relations between persons between those with a protected characteristic and who do not share it. This means removing disadvantages and take steps to meet any needs.

Ms Holland argued that seeking possession of her home when she did not have suitable alternative accommodation available to her was not a proportionate means of achieving a legitimate aim. She also argued that Reading, in deciding to seek possession, was in breach of the PSED. The County Court judge found in Reading's favour. The judge held that Reading had complied with the PSED and that the decision to evict her was proportionate given the risk to her neighbours and others because of her behaviour.

The Appeal

The High Court summarised the grounds of appeal as follows (paras 45 and 48):

1. That the Judge had gone wrong in relation to the question of the effect of eviction upon the Ms Holland, bearing in mind her particular disability.

2. That the Judge had gone wrong in relation to the question of suitable alternative accommodation.

Ms Holland argued that both grounds went to both the question whether Reading had complied with the PSED and whether eviction was proportionate.

On the first ground and the PSED, Reading, Ms Holland said, should have had a 'sharp focus' on the effect of eviction on her having regard to her particular disability, but they gave it no more than a general consideration and without medical evidence. Similarly, the judge was unable to properly consider the proportionality of an eviction without such evidence.

On the second ground and the PSED, Ms Holland said that Reading had failed to properly consider an offer made by her earlier in the proceedings to accept that eviction would be proportionate if she had suitable alternative accommodation. Reading, she said, had to show that it had considered all the options in this context, and specifically whether suitable alternative accommodation was available. On proportionality, the judge, Ms Holland said, had made the same mistake.

Considering whether Reading had complied with the PSED , the High Court found that there had been sufficient consideration of the PSED, with the required 'sharp focus' as established by Hotak v Southwark [2015] UKSC AC811. Johnson J noted that the judge in the first instance had considered the following

"93. In fact the tenancy of Flat 24 was offered to her after her tenancy at Chartfield Road broke down because of antisocial behaviour and threats against her neighbour, and her temporary accommodation gave rise to similar problems as those that she went on to have at Flat 24. The evidence is that she was offered it after much thought and a full assessment of her needs, as I have set out, which included her diagnoses, her mental health issues, behaviours arising from her disabilities including difficulties in managing her anger. It was considered to be suitable because it was in a small block of 4 so there were few neighbours; it was on the first floor which she preferred; it was sheltered housing which would provide support staff on site and support services such as the emergency Tunstall system and where it was hoped that the older age of the neighbours would provide a calmer environment; because it had green space around and was set back from the road which it was hoped would be quieter than other blocks, and it was hoped that it would build up her confidence. In my judgment, that shows the Claimant putting in sharp focus, and taking steps to meet, the specific needs of the Defendant arising from her disability and to remove or minimise disadvantages arising from her disability. Once in Flat 24 the Claimant sought to put in place access to volunteering opportunities which it had been advised would be beneficial and go to Reading Recovery College: that is in my judgment encouraging the Claimant to participate in public life."

With regards to Ms Holland's representative's argument for the need fo further medical evidence to assess the impact of the eviction, the High Court did not find any basis to interefere with the decision made by the judge in the first instance not to require it.

It was further noted that whist the Equality Act Assessment was deficient in various aspects, the judge at first instance was also entitled to consider the PSED on a wider basis and that the position was not as rigid.

Turning to the second question, the High Court concluded that the trial judge had consider all the evidence before the court and heard the arguments with regards to the proportionality of eviction without any suitable accommodation. Johnson J highlighted the following key paragraph in the County Court judgment:

"109. As regards the balance between the disadvantage to the Defendant of being evicted against the benefits to the Claimant, their employees and contractors, and the neighbours if the antisocial behaviour is stopped by an eviction: I accept that eviction without alternative accommodation will be very bad for the Defendant's mental and physical health and particular vulnerabilities arising from her EUPD particularly. I have set out the history of allegations of antisocial behaviour and other complaints and behaviours very extensively - perhaps too extensively - for fear of not painting a fair picture of what the Claimant's staff and contractors, neighbours and others such as Forest Care staff have had to deal with from the Defendant over the years. In fact it does not paint a full picture because the sheer volume of calls, voicemails, texts and their abusive content to staff and contractors cannot be understood from my history, and nor, no doubt, can the extent of difficulties, disruption and abuse that has been experienced by the neighbours. The Defendant has made those over-55 neighbours, some elderly and vulnerable themselves, who have been assessed as suitable for sheltered housing, feel unsafe and insecure in their homes such that some of them have asked to leave it. They and other users of the Tunstall system have been put in danger by the Defendant's excessive use of, and damage to the Tunstall system. When it is damaged it cannot be used by some residents to call if they fall or have another emergency, it puts the fire warning and monitoring system at risk: these are real dangers."

The appeal was ultimately dismissed, with the High Court finding no basis to interfere with the judgement in the first instance.

Whilst this case demonstrates the important considerations that must be made prior to the commencement of possession proceedings, there are two points which housing providers can take away from this judgement:

1. Housing providers need to be able to demonstrate a 'sharp focus' on a person's disability when considering possession proceedings.Housing providers can draw on wider exercises, communications and their history with defendants in addition to any Equality Act Assessment prepared. Therefore, should there be any question of sufficiency of any single assessment, the housing provider has additional resources available to them to demonstrate that the PSED has been discharged.

2. It is not automatically the case that a housing provider must have expert evidence from a psychiatrist in order to discharge the PSED. In this case, Ms Holland's representative had himself accepted that a public sector landlord could not, in every case, be required to expert evidence of the likely consequences of eviction. It is a matter for a judge to decide whether the material available to a housing provider was sufficient . The judge in the first instance was satisfied that there was no requirement for further evidence given Reading's long involvement with Ms Holland. Further, the judge seen evidence from the note of the Multi-Agency meeting that Reading had in mind the effect of conviction. This being said, in other instances, housing providers may find themselves having to seek further medical evidence, particularly where they have not been able to evidence such considerations in their approach to possession cases.