How a social landlord can comply with the public sector equality duty (“PSED”) has been the subject of a number of challenges in court in recent years.
This year alone has seen three key cases decided in the High Court and Court of Appeal. Rebecca Brady’s article in the previous Housing Management Brief (“Recent cases provide guidance on the application of the public sector equality duty”) set out the background to two of the most recent claims, Powell v Dacorum Borough Council  EWCA CIV 23 and Forward v Aldwyck Housing Group  EWHC 24 (QB).
Since those judgements, there have been two further key decisions, London & Quadrant Housing Trust v Patrick  EWHC 1263 (QB) and Forward v Aldwyck Housing Group  EWCA Civ 1334. Both cases were dealt with by Devonshires and the decisions have provided comfort to social landlords who face vigorous challenges in relation to the application of the PSED.
In the case of Forward, the Court of Appeal decided that there is no rigid rule that non-compliance with the PSED should always mean the decision to claim possession should be set aside or quashed. It concluded that the court needed to look closely at the facts of each case and decide whether, in the event of non-compliance with the PSED, “it is highly likely that the decision would not have been substantially different if the breach of duty had not occurred”.
While it is of comfort to have these judgments to fall back on in the event that there has been some form of non-compliance, this should not change a social landlord’s approach to its decision making processes when considering taking action against an occupier who is disabled.
With that in mind, I set out below my top ten tips for compliance:
- Know your tenant. Make sure that your sign up information is retained so that you can access it when you are looking to make decisions later in the tenancy – this could draw your attention to a disability that may otherwise have not been considered by the decision maker.
- Keep your enquiries open. It is good practice to make enquiries as to the occupiers’ health and/or give the occupier the opportunity to provide information that may affect your decision making.
- Keep good records. This covers all records of interactions between the landlord and the occupier which could demonstrate with clarity what information the landlord had in respect of the occupier’s circumstances/disability and any steps taken to explore alternative options before the decision to take possession was reached. Further, make sure that all interactions with third party agencies such as social services are documented and retained as these will be vital for any decision makers to take into account when having due regard.
- Be guided by expert opinion. If in doubt as to whether or not the occupier’s condition constitutes a disability, seek further information. If you are still unsure, conduct an assessment on the basis of available information, clearly stating that you are unable to satisfy yourself that the condition meets the definition of disability (Section 6 Equality Act 2010) but that you have conducted an assessment on the basis that it does. This will preserve your position in any future claim.
- Ensure that decision makers have a good precedent framework to work from to give certainty that all relevant issues are considered when assessment is made. Avoid rigid templates as this should not be a tick box exercise.
- Record the decision. The Equality Act does not provide that a written record must be kept but it is vital to keep a written record to demonstrate due regard and the factors taken into account at the time the decision was made.
- Carry out an assessment at the earliest possible opportunity. It is good practice so ensure that an assessment is carried out before any notice is served. Otherwise at the first possible time thereafter.
- Make sure that the PSED is kept under review during the whole process. It is an ongoing obligation to have due regard, not a stand-alone decision.
- A clear policy is a must have. Make sure that officers know it and follow it.
- Training is key. Ensure that your decision makers and officers are trained in the requirements of PSED and also have a broader understanding of the provisions of the Equality Act.
For more information in relation to the PSED, or how we can assist you with your policy or training requirements please contact Donna McCarthy, Partner in our Housing Management & Property Litigation team.