Decision: A failure to comply with the PSED is not fatal to a claim brought by a public body if the decision would have been the same had the PSED been complied with.
The PSED requires public bodies when making decisions to have ‘due regard’ to the need to eliminate discrimination and to advance equality of opportunity across eight of the nine ‘protected characteristics’ set out in the Equality Act 2010.
Possession claims by social landlords are increasingly defended on the ground that the landlord has failed to comply with the PSED; often with no further particularisation of the breach beyond the fact that the defendant is disabled and therefore has one of the protected characteristics. This is a public law defence.
In the current case Aldwyck HA accepted that the defendant, Mr Forward had a physical disability but did not take it into account when deciding whether or not to issue possession proceedings. The housing officer, accepted, under cross-examination, that this was a breach of the PSED. The trial judge nonetheless made a possession order.
On appeal Mr Forward argued that where there is an admitted breach of the PSED the landlord’s possession claim should fail. He argued that a breach of the PSED could only be ‘waived’ where either the breach was remedied before trial or there was a reliable guarantee that the PSED would be complied with before any judgment was enforced.
The Court of Appeal, accepting Nick and Millie’s submissions, refused Mr Forward’s appeal because:
1. What is ‘due regard’ depends on the facts and is different where a decision concerns a policy which impacts on a population with protected characteristics rather than an individual;
2. Breach of the PSED is a public law defence, therefore the grant of relief is discretionary; and
3. If the landlord’s decision would have been the same even if the PSED had been complied with the relief (i.e. the defence) must be refused.
Nick and Millie were instructed by Donna McCarthy of Devonshires LLP.