Luton Community Housing Limited v Durdana. Court of Appeal, Patten, Moylan and Newey LJJ.  EWCA Civ 445, 26 March 2020
The Court of Appeal has held that where the Appellant landlord had breached the public sector equality duty (“PSED”), the Circuit Judge had been wrong to dismiss its claim for possession of the Respondent’s home purely because of that breach and without considering whether it was reasonable to make a possession order, in circumstances where it was highly likely that the landlord would have decided to seek possession even if it had complied with the PSED. The Court remitted the case back to the County Court for consideration of whether it was reasonable to order possession.
Jonathan Manning and Stephanie Lovegrove of 4-5 Gray’s Inn Square appeared for the Appellant.
Toby Vanhegan and Katie Lines of 4-5 Gray’s Inn Square appeared for the Respondent
Luton Community Housing Trust (“LCH”) brought possession proceedings relying on Ground 17 in Schedule 2 to the Housing Act 1988 on the basis that they had been induced to grant the tenancy by false statements made by Ms Durdana when she applied for an allocation of housing to Luton Borough Council.
HH Judge Bloom found that ground 17 was made out, but that LCH was in breach of the PSED because, although they knew about the disabilities of Ms Durdana and her daughter, and although they had undertaken a proportionality assessment, they did not properly consider the impact of those disabilities if the family were evicted. Accordingly, the Judge dismissed the claim for possession for breach of the PSED. She decided that she did not have to go on and consider the question of reasonableness, but in the alternative she held that the breach of the PSED meant that it would not be reasonable to order possession.
LCH appealed. The Court of Appeal agreed with the Judge that there had been a breach of the PSED. They held, however, that when deciding to dismiss the possession claim because of it, the Judge had wrongly applied the test of whether, had PSED been complied with, the same decision would have been inevitable.
The correct test was not one of inevitability but rather whether it was ‘highly likely’ that the outcome would not have been substantially different had no breach of the duty occurred, see Aldwyck Housing Group Limited v. Forward  EWCA Civ 1334, per Longmore LJ. at .
The Court held that this test was satisfied on the facts. In the face of a continuing shortage of public housing, LCH was justified in operating a policy of seeking to remove tenants who had obtained their accommodation by deception. The duties owed to other homeless applicants supported and justified that policy. While the weight to be accorded to those policy considerations as opposed to the disability issues was a matter for LCH as the decision-maker, it was completely unrealistic to suggest that the balance of reasonableness would in this case have come down in favour of the Respondent
The possession claim was therefore remitted to the County Court for consideration of the issue of reasonableness.