PSED Compliance in Housing Possession: An Analysis of Powell v Dacorum Borough Council ([2019] EWCA Civ 23)

Introduction

Powell v. Dacorum Borough Council ([2019] EWCA Civ 23) is a significant case before the England and Wales Court of Appeal that addresses the application of the Public Sector Equality Duty (PSED) under Section 149 of the Equality Act 2010 in the context of housing possession proceedings. The appellant, Mr. Dylan Powell, challenged the enforcement of a possession warrant issued by the Dacorum Borough Council (the Council) for the property located at 1 Marnham Rise, Hemel Hempstead, Hertfordshire ("the Property"). The central issue on appeal was whether the Council breached its PSED obligations during the enforcement process.

Summary of the Judgment

The Court of Appeal upheld the decisions of both the initial County Court and HH Judge Bloom, dismissing Mr. Powell's appeal. The lower courts had previously dismissed Mr. Powell's application to suspend the possession warrant, finding no breach of the PSED by the Council. The appellate court affirmed that the Council had duly considered its obligations under the Equality Act 2010 and had acted proportionately in enforcing the possession order despite Mr. Powell's disclosed disabilities. The Council's proportionality assessment, conducted after new medical information emerged, was deemed compliant with the PSED, thereby justifying the enforcement of the possession order.

Analysis

Precedents Cited

The judgment extensively referenced and built upon several key legal precedents to substantiate the Council's compliance with the PSED:

• Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834: Established that any breach of the PSED at any stage of proceedings could be remedied by proper consideration at a subsequent stage.
• Paragon Asra Housing Ltd. v Neville [2018] EWCA Civ 1712: Clarified that once a possession order is made, it is binding unless there is a relevant change in circumstances, and the proportionality assessment need not be revisited unless such changes occur.
• Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345: Emphasized the importance of strict compliance with equality duties, including rigorous documentation and consideration.
• Haque v Hackney LBC [2017] EWCA Civ 4: Highlighted the necessity for decision-makers to focus sharply on relevant aspects of the PSED, ensuring decisions are made in good faith and with due regard to equality implications.

These precedents collectively reinforced the Court's approach in assessing whether the Council adequately fulfilled its PSED obligations during the possession enforcement process.

Legal Reasoning

The Court delved into the legal intricacies of the PSED, which mandates public authorities to eliminate discrimination, advance equality of opportunity, and foster good relations between different people when carrying out their functions. The proportionality assessment conducted by the Council's Anti-Social Behaviour Officer, Mrs. Kim Ashworth, played a pivotal role in determining whether enforcement measures were justified despite Mr. Powell's disabilities.

Key aspects of the legal reasoning included:

• Duty Fulfillment: The Council demonstrated a consistent effort to understand and address Mr. Powell's circumstances, including attempts to engage with mental health and support services.
• Proportionality: The enforcement of the possession order was deemed proportionate as Mr. Powell had a history of breaches related to drug dealing, which significantly impacted the community.
• Remediation of Potential PSED Breaches: Even if minor lapses in considering the PSED existed at initial stages, the Council effectively remedied these through comprehensive assessments upon receiving new medical information.
• Balance of Interests: The Court found that the Council adequately balanced Mr. Powell's needs against those of the community, ensuring that the enforcement was both reasonable and necessary.

The judgment underscored that compliance with equality duties does not necessarily impede lawful enforcement actions but requires diligent consideration and documentation.

Impact

This judgment reinforces the principle that while public authorities must conscientiously adhere to equality duties, such adherence does not preclude them from enforcing lawful orders when justified. Specifically:

• Clarity on PSED Compliance: The case provides a clear framework for how housing authorities can balance PSED obligations with enforcement actions, emphasizing the importance of proportionality assessments.
• Encouragement of Rigorous Documentation: Authorities are encouraged to maintain detailed records demonstrating their consideration of equality duties, facilitating transparency and accountability.
• Guidance for Future Cases: Future possession cases involving defendants with disabilities can reference this judgment to understand how courts assess PSED compliance in complex scenarios.

Ultimately, the decision serves as a precedent for ensuring that equality duties are integrated thoughtfully into enforcement actions without undermining public authorities' legitimate objectives.

Complex Concepts Simplified

To ensure a clear understanding of the judgment, the following legal concepts are elucidated:

Public Sector Equality Duty (PSED)

Under Section 149 of the Equality Act 2010, PSED requires public authorities to:

• Eliminate unlawful discrimination, harassment, and victimisation.
• Advance equality of opportunity between people with protected characteristics and those without.
• Foster good relations between different people.

This duty is integrated into the functions of public bodies, requiring them to consider equality implications in their decision-making processes.

Proportionality Assessment

A proportionality assessment evaluates whether the actions taken by an authority are suitable and necessary to achieve legitimate aims. In this case, it assessed whether evicting Mr. Powell was a reasonable response to his repeated breaches of the tenancy agreement and anti-social behavior.

Possession Order

A possession order is a legal directive requiring a tenant to leave a property. Such orders can be suspended on specific terms, allowing tenants to remain if they comply with certain conditions.

Disability Under Equality Act 2010

The Act defines disability as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.

Conclusion

The case of Powell v. Dacorum Borough Council underscores the delicate balance public authorities must maintain between upholding equality duties and enforcing lawful orders. The Court of Appeal's affirmation of the lower court's decision reinforces that compliance with the PSED is achievable even in stringent enforcement scenarios, provided authorities conduct thorough, proportional assessments and document their considerations meticulously. This judgment serves as a crucial reference point for future cases, guiding public bodies in integrating equality considerations effectively without compromising their legitimate objectives.