In Taylor v. Slough BC  EWHC 3520 (Ch), the High Court held that in possession proceedings brought by a local authority, a breach of the public sector equality duty (“PSED”) at an early stage, c
In Taylor v. Slough BC  EWHC 3520 (Ch), the High Court held that in possession proceedings brought by a local authority, a breach of the public sector equality duty ("PSED") at an early stage, can be cured by compliance at a later stage.
The appellant was a secure tenant. In 2011 she was diagnosed with bipolar disorder, which the respondents became aware of in 2012. Following allegations of anti social behaviour related to drug use at the appellant's property, a Closure Order was made. This led the respondents to serve her with a notice seeking possession which relied, inter alia, on the absolute ground for possession contained in section 84A of the Housing Act 1985.
Shortly before starting the possession claim, the respondents carried out an Equality Act assessment on the basis that the appellant was not disabled which was not true. During the possession proceedings, expert evidence was obtained which confirmed that the appellant was disabled under the Equality Act 2010 because she had emotionally unstable personality disorder.
In her Defence, the appellant alleged that the respondents were in breach of the PSED. At the trial in the county court, the Judge found that although the Equality Act assessment was done on the wrong premise, there was no breach of the PSED because the respondents realised their error and carried out investigations into the appellant's circumstances. The Judge made a possession order and the appellant appealed on several grounds. She was granted permission on the ground that there was a breach of the PSED and therefore the Judge should have dismissed the Claim. A Respondent's Notice was lodged which argued that there was no breach, but if there was, it was "highly likely" the respondents would have sought possession anyway, and therefore the breach was not relevant.
On the appeal to the High Court, Zacaroli J. held that the authorities establish the proposition that in possession proceedings brought by a local authority, a breach of the PSED at an early stage, for example the decision to commence proceedings, can be cured by compliance with the PSED at a later stage, such by when deciding to continue the proceedings. However, early breach of the PSED was not irrelevant to later compliance. It is always necessary to find that the authority has complied in substance, with rigour and with an open mind. It is important to guard against the risk that subsequent compliance is not tainted by the incentive not to depart from a decision already made. Whether there is compliance with the PSED in the particular circumstances, is a question of fact.
Having found that there was no breach of the PSED, it was unnecessary for the Judge to go on and consider the application of the "highly likely" test to the facts of the case.