Introduction

The case of Metropolitan Housing Trust Ltd v TM ([2021] EWCA Civ 1890) is a landmark decision by the England and Wales Court of Appeal (Civil Division) concerning the application and remediation of the Public Sector Equality Duty (PSED) under Section 149 of the Equality Act 2010 ("EA 2010") in the context of possession proceedings for rented residential premises.

The appellant, TM, an individual diagnosed with schizoaffective disorder and paranoid schizophrenia, sought to overturn a possession order granted by Metropolitan Housing Trust Limited ("Metropolitan"), a registered social housing provider. The core issue revolved around whether Metropolitan breached its PSED obligations and if such a breach could be remedied, thus affecting the validity of the possession order.

Summary of the Judgment

The Court of Appeal, led by Lord Justice Nugee with concurrence from Lord Justices Green and Snowden, allowed TM's appeal against Metropolitan's possession order. The key findings include:

• Breach of PSED: Metropolitan failed to reassess the PSED compliance upon receiving Dr. Koch's report indicating TM's lack of capacity to partake in legal proceedings.
• Remediability of the Breach: The Court held that Metropolitan did not adequately remedy its breach of the PSED, as the subsequent actions taken during the trial were insufficient to nullify the initial non-compliance.
• Possession Order Dismissed: Given the unresolved breach of PSED, the possession order was set aside, and Metropolitan's claim was dismissed.
• Costs: Metropolitan was ordered to bear TM's legal costs both in the appeal and the lower courts.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to frame the Court's reasoning:

• Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334: Affirmed that a breach of the PSED serves as a valid defense in possession claims.
• Bracking v Secretary of State for Work & Pensions [2013] EWCA 1345: Provided foundational understanding of the PSED's nature and obligations.
• Norton Lloyd LJ in Norton v Barnsley MBC [2011] EWCA Civ 834: Established that breaches of PSED in possession proceedings can be remedied by later compliance.
• Powell v Dacorum [2019] EWCA Civ 23: Reinforced the principle that PSED breaches in ongoing proceedings may be rectified.
• Taylor v Slough BC [2020] EWHC 3520 (Ch): Confirmed that late-stage PSED compliance can mitigate earlier breaches.

Legal Reasoning

The Court delved into whether Metropolitan's failure to reassess the PSED after receiving new information (Dr. Koch's report) could be considered remedied by Metropolitan's subsequent actions during the trial. Key points include:

• Continuing Duty of PSED: The PSED is an ongoing obligation, requiring public authorities to reassess their compliance when new relevant information emerges.
• Assessment of Remediation: The Court scrutinized Mr. Print's testimony, determining that his retrospective consideration in the witness box did not constitute a genuine, open-minded reassessment required by the PSED.
• Risk of Confirmation Bias: Evaluations conducted under the pressure of existing proceedings risk bias, undermining the objectivity mandated by the PSED.
• Remediation Standards: Remediation of a PSED breach must consist of a "conscientious, rigorous, and open-minded" assessment, which was not met in this case.

Ultimately, the Court concluded that Metropolitan did not sufficiently remedy its initial breach, thereby invalidating the possession order.

Impact

This judgment has significant implications for future possession proceedings involving public authorities and other bodies subject to the PSED:

• Strict Compliance: Reinforces the necessity for public authorities to rigorously adhere to their equality duties throughout all stages of decision-making.
• Remediation Standards: Sets a clear standard that mere belated reassessment does not suffice to rectify PSED breaches; the process must be thorough and unbiased.
• Procedural Safeguards: Encourages the implementation of internal review mechanisms to prevent and address equality duty breaches promptly.
• Judicial Oversight: Highlights the judiciary's role in scrutinizing the genuineness of PSED compliance, ensuring that protections for individuals with protected characteristics are effectively enforced.

Complex Concepts Simplified

Public Sector Equality Duty (PSED)

The PSED mandates that public authorities must actively work to eliminate discrimination, advance equality of opportunity, and foster good relations among people with and without protected characteristics, such as disability.

Breach of PSED

A breach occurs when a public authority fails to consider or implement the obligations under the PSED during its decision-making processes.

Remediation of Breach

Remediation involves taking appropriate steps to address and rectify a previous failure to comply with the PSED. This includes conducting a thorough and unbiased reassessment of the situation when new relevant information arises.

Ground 14 of Schedule 2, Housing Act 1988

Ground 14 allows landlords to seek possession of a property if the tenant has engaged in conduct that causes nuisance or annoyance to others, including landlords or their employees.

Senior Courts Act 1981, Section 31(2A)

This section pertains to the "highly likely test," which assesses whether a decision would have been the same had the public authority complied with the relevant legal duties, such as the PSED.

Conclusion

The Metropolitan Housing Trust Ltd v TM judgment underscores the paramount importance of meticulous adherence to the Public Sector Equality Duty in all facets of decision-making, especially in sensitive matters like possession proceedings. By ruling that Metropolitan failed to adequately remedy its breach of the PSED, the Court of Appeal emphasized that retrospective attempts to comply with equality duties are insufficient unless they meet the criteria of being conscientious, rigorous, and free from bias.

This decision serves as a critical reminder to public authorities and related entities of the enduring nature of equality obligations and the necessity for proactive, ongoing assessments to ensure compliance. Failure to do so not only jeopardizes individual rights but also undermines the integrity of public institutions tasked with upholding equality and fairness.