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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Metropolitan Housing Trust Ltd v TM [2021] EWCA Civ 1890 (20 December 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1890.html Cite as: [2022] WLR 2161, [2021] EWCA Civ 1890, [2022] HLR 16, [2022] 1 WLR 2161, [2021] WLR(D) 639 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE JOHNSON
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE NUGEE
and
LORD JUSTICE SNOWDEN
____________________
 METROPOLITAN HOUSING TRUST LIMITED |
Claimant/ Respondent |
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| - and – |
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| TM (A protected party, by his litigation friend DM) |
Defendant/ Appellant |
____________________
Andrew Lane and Liam Varnam (instructed by the Respondent's in-house legal team) for the Respondent
Hearing date : 4 November 2021
____________________
VERSION OF APPROVED JUDGMENT
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by e-mail and release to BAILII. The date and time for hand-down is deemed to be at 10:30am on 20 December 2021
Lord Justice Nugee:
Introduction
Metropolitan Housing Trust Limited ("Metropolitan"), is a registered provider of social housing and the freehold owner of the unit of supported housing accommodation which the appellant, TM, has occupied since February 2014 ("the Property"). TM does not have capacity to conduct litigation, and therefore the proceedings, both in this Court and in the Courts below, have been conducted on his behalf by his father and litigation friend, DM.
Metropolitan brought a claim against TM for possession of the Property in the County Court. The claim was heard by Mr Recorder Hodge Malek QC ("the Recorder"), sitting in the County Court at Cambridge, over three days from 9 to 11 September 2019. He gave a detailed oral judgment on 12 September 2019 upholding Metropolitan's claim for possession and by his Order dated 13 September 2019 granted possession of the Property, but stayed enforcement pending a further hearing, his intention being that TM should not be evicted without suitable alternative accommodation.
TM permission to appeal but TM was granted permission by Eady J. The appeal was heard by Johnson J ("the Judge"). He gave judgment on 30 January 2020 at [2020] EWHC 311 (QB) dismissing the appeal, which was given effect to by his Order dated 31 January 2020.
The PSED
"149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment,
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—
…
disability;
…"
Background
TM is an adult who is diagnosed with schizoaffective disorder and treatment-resistant paranoid schizophrenia. TM has occupied the Property under a supported living arrangement since February 2014. Although he occupied under an agreement termed a License Agreement, Metropolitan accepted that it created an assured tenancy under the Housing Act 1988 ("HA 1988"). The Property is one of 17 housing units forming a development which provides mental health supported accommodation for individuals with moderate to severe mental difficulties ("the Development").
Metropolitan itself. In 2017 however the local authority re-tendered the care contract and awarded it to Sanctuary Supported Living ("Sanctuary").
TM assaulted an employee of Sanctuary working at the Development by hitting him on the side of the face and jaw. This incident was admitted in the Defence. The Recorder described it as a very serious assault: the employee was off work for 6 weeks and had a continuing ache in his jaw at trial (judgment at [B48]-[B49][1]). It occurred wholly out of the blue and led to Sanctuary withdrawing support ([B27(4)].
TM exposed himself to a female resident of the Development. This was not admitted in the Defence but was recorded on CCTV and not disputed at trial, albeit the Recorder found that it was very brief and not of a sexual nature, and said that he could exclude the possibility for current purposes of a repetition [B45].
Metropolitan served a notice on TM as required by s. 8 HA 1988 as a prelude to taking proceedings for possession, and on 12 September 2018 issued a claim in the County Court for possession of the Property, relying on Ground 14 in sch 2 HA 1988 ("Ground 14"). Ground 14 is one of the discretionary grounds in Part II of sch 2, which means that the Court may, if satisfied that the ground is established, make an order for possession if it considers it reasonable to do so: s. 7(4) HA 1988. Ground 14, so far as relevant, is in the following terms:
"The tenant or a person residing in or
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing;
(aa) has been guilty of conduct causing or likely to cause a nuisance or annoyance to the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord's housing management functions, and that is directly or indirectly related to or affects those functions…"
Metropolitan sought to rely on a number of other incidents involving TM dating back to 2013 and continuing up to August 2019 (11 in all, including the two pleaded ones). There was a dispute whether the Recorder could take account of these incidents (not pleaded in the Particulars of Claim although there was reference to some of them in the Reply), but in his judgment he held that since the duty of the Court in considering reasonableness was to take into account all relevant circumstances (Cumming v Danson [1942] 2 AER 653), he did need to deal with the question whether the other incidents could be admitted or relied upon in assessing the risk of harm to TM himself and to others in continuing to reside at the Development, and that they could provide the context as to whether the two pleaded incidents were one-off or formed a more disturbing pattern whereby the risk of harm was serious [A11]-[A12]. He made the point (at [A25]) that in every incident he had looked at:
"there is absolutely no blame at all on [
(1) In December 2014
(2) In May 2016
(3) In 2017
(4) In the summer of 2018 (the date is unclear but between June and August)
I should note that we were told by Ms Karon Monaghan QC, who appeared with Mr Nick Bano for
Metropolitan served a notice seeking possession, but subsequently decided not to issue proceedings. Instead it was agreed that Metropolitan would work with the local NHS trust to find alternative accommodation. Two sites were subsequently proposed but TM's parents did not consider them suitable. The Recorder said that he did not criticise them for that: both of them in good faith felt that those properties were not suitable for the reasons they gave [B58].
Metropolitan's decision to bring and pursue proceedings.
The Recorder's judgment
Metropolitan, he then set out the grounds relied on, on behalf of TM, for resisting an order for possession [A26]. One of these was that Metropolitan had failed to comply with the PSED (the others being that Metropolitan had unlawfully discriminated against TM, and acted in breach of its public law obligations, and that it was not reasonable or proportionate to make an order evicting him).
various aspects of the law, including that relating to the PSED. He noted that a breach of the PSED was a defence to the claim for possession (London & Quadrant v Patrick [2019] EWHC 1263 (QB), approved in Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334 ("Forward")), and cited extensively from the judgment of McCombe LJ in Bracking v Secretary of State for Work & Pensions [2013] EWCA 1345 ("Bracking") at [26] and [69] on the nature of the PSED [A36].
Metropolitan. His evidence is of central importance to the appeal and I will have to come back to consider it in more detail. At [B6]-[B16] the Recorder then considered the expert material, including the evidence of Dr Koch, TM's psychiatrist, who provided a psychiatric report. The Recorder accepted her assessment that TM was unfit to participate in the proceedings [B8]. He also quoted from her conclusion as follows:
"Should he be evicted from his current placement without careful planning involving his family and clinical team, and provision of suitable alternative accommodation and care, I would have great concerns for his well-being and consider that the action and neglect of our collective duty to protect him as a
The Recorder said that he agreed with that assessment: any eviction would require careful planning and it was not going to be a question of simply putting
"The conclusion I take at the end of the day is that [the Development] is not the right place for him and he does pose a significant risk, not just to himself but to others."
TM himself, noting that the case felt "a bit like Hamlet without the Prince" as he was neither present nor had any instructions been obtained from him. He gave another conclusion in this section of the judgment as follows [B27]:
"What is clear to me, however, is that in the medium and long-term [
That was followed by a list of the particular matters that led him to this conclusion, including that there was a real risk of altercation between
view of his findings of the significantly high risk of harm and recurrence.
"85. As I have already set out when giving my assessment of [
86. Weighing all the factors I conclude that it is reasonable to make the order, but any order as regards enforcement should be stayed for a period of time which I would like to hear counsel on…
87. The matter when it comes back should be reserved either to Her Honour Judge Karen Walden-Smith or myself if she is not available. I will inform her that it is not my intention that [
TM to give possession of the Property within 28 days but stayed enforcement of the order pending a further hearing to be heard in December 2019 before HHJ Walden-Smith or himself, with the parties having permission to file further evidence addressing TM's welfare and the efforts that had been made to find suitable alternative accommodation. That hearing has been stayed pending appeal.
view of Metropolitan, but also from the point of view of TM's own best interests. Second, the Recorder dealt with a large number of issues, and it is right to record that, save in respect of the PSED, no criticism is made of either his factual findings or his consideration of the law. Third, the Recorder was very clear that a possession order would not mean that TM would be evicted without somewhere suitable for him to go to.
Metropolitan's consideration of the PSED, and how the Recorder dealt with the criticisms made of it.
Metropolitan's consideration of the PSED
Metropolitan. The relevant decision-maker at Metropolitan was Mr Print. The Recorder described him as highly experienced and professional; said that he cared about TM; found that he was very conscious it was going to be a big step to evict a tenant; and said that he was aware of the need to balance the interests of all, not just of TM but of staff at Sanctuary and other residents [A41]. He found him to be an open and totally frank witness [A42].
(1) In the light of the incidents on 5 and 15 May 2018, he asked for a meeting with Sanctuary and the Community Mental Health Team ("CMHT"). The meeting took place on 24 May 2018. The meeting was attended by, among others, Ms Philippa Gordon-Smith, the Local Services Manager for Sanctuary. There was a discussion, in the course of which Mr Print raised the question of
(2) The meeting ended with Mr Print's request to the CMHT representatives to consult with Dr Koch to determine
(3) On 1 June 2018 Mr Print decided to issue the notice seeking possession in order to safeguard the staff and residents.
(4) An Equalities Act Report was prepared by Ms Gordon-Smith dated 13 June 2018. Among other things it said that
"The assault of 15th May was the third incident in 4 years where someone has been physically harmed by [
(5) One of the criticisms advanced before the Recorder was that it was inaccurate to say that there had been three incidents where someone had been physically harmed. He accepted that: in December 2014 the gasman, although he might have been in fear of
(6) Mr Print got the Equalities Act Report and reviewed it. He decided to proceed with proceedings for possession and they were issued on 12 September 2018. A second criticism advanced before the Recorder was that the PSED is non-delegable and Mr Print was not entitled to rely on Ms Gordon-Smith's assessment. The Recorder rejected that. He accepted that the duty was non-delegable (R (Brown)
TM at the Property on 4 October. She concluded that he continued to experience significant symptoms of schizophrenia that affected his understanding of and capacity to make decisions about legal matters; that he was not fit to instruct a solicitor as he was unable to weigh information provided to him about the court process, and had no interest in representing his interests in court; and that his taking part in the proceedings would have a negative impact on his mental state and behaviour. We were not told when Metropolitan was given a copy, but we were told that they had it by the time of the first hearing on 29 October 2018.
"Since the decision to evict, we have Dr Koch's assessment that [
Then, when considering the defence of breach of the PSED, he said this [B77]:
"I accept that the duty in respect of the PSED is a continuing duty and that is clear from [Brown] at [168].
The Recorder therefore rejected the defence of breach of the PSED, and as already referred to, went on to make the possession order.
The Judge's judgment
TM appealed to the High Court on two grounds. One concerned the application of the proportionality test under s. 15 EA 2010. This was rejected by the Judge in his judgment, who found that the Recorder had faithfully applied the correct legal approach [56]; that it was not a case of the Recorder failing to consider intermediate alternatives, but that the nature of the problems were such that there was no other available intermediate alternatives [58]; and that, in circumstances where the Recorder had not ordered immediate possession but made an order that would only be enforced once more appropriate accommodation were available, the proportionality balance fell in Metropolitan's favour [59]. There has been no further appeal on the question of proportionality.
(1) At the time of issuing proceedings,
(2) Once Dr Koch assessed that
(3) On a fair reading of the Recorder's judgment he found that
(4) There was therefore no continuing breach by the time the Recorder gave judgment and no reason to refuse to grant a possession order [70].
(5) Further, on a fair reading of the Recorder's judgment it could safely be concluded that it was highly likely that
(6) As to Mr Print's evidence accepting that he would have made a different decision in May 2018 had he known of Dr Koch's decision, the Judge said this [72]:
"However, the fact is that he did not know of the decision at that point, and there was no breach of the PSED at that point. The relevant point in time is October 2018 by which time possession proceedings had already been initiated. Mr Print was not asked what his position would have been in October 2018. However, nothing of significance changed between October 2018 and the point when he gave evidence. At the point when he gave evidence he considered that it was reasonable and proportionate to pursue eviction. It follows that it is highly likely that even if Dr Koch's report would have given him cause to reflect on whether the proceedings should be maintained, and to assess whether there are any other practical alternatives, he would ultimately have concluded that they should be maintained, notwithstanding proper compliance with the PSED in the light of Dr Koch's report."
(7) It followed that Forward did not mandate the refusal of a possession order; it supported the Recorder's decision that a possession order was appropriate notwithstanding
Metropolitan would probably have reached the same decision if it complied with its PSED, relief should be refused as a matter of discretion [74].
Grounds of Appeal
TM now appeals to this Court with the permission of Asplin LJ. There are two Grounds of Appeal:
(1) The Judge was wrong to find that, following
(2) The Judge was wrong to uphold an order for possession in circumstances where
Ground 1 – was the breach of the PSED remedied by Mr Print in evidence?
Varnam for Metropolitan, accepted that the Recorder and Judge had both found that there was a breach of the PSED, albeit he said that it was important to note that that was not a breach in issuing the proceedings (where the Recorder found that Mr Print had duly considered the PSED on the material then available), but was a breach in continuing the proceedings without re-considering the PSED in the light of Dr Koch's report. He made a number of other points: that there was no current challenge to the notice seeking possession, or to the decision to issue proceedings, or to the Recorder's finding that Ground 14 was satisfied, or his rejection of the discrimination and public law defences, or his conclusion that it was otherwise reasonable and proportionate to make the order which he did. Moreover it was common ground (as recorded by the Judge in his judgment at [43], and as confirmed to us by Ms Monaghan) that the Property was not suitable for TM and if more suitable accommodation were found for him, it would be appropriate for him to move.
vi)]). And even though the reasonableness and proportionality of continuing to seek possession may be an appropriate way of characterising the ultimate decision to be made, that is not the same as saying that all that is needed is a proportionality assessment; what is needed is the open-minded conscientious inquiry referred to in the authorities (Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445 at [27] per Patten LJ).
very high. Where, as here, the evidence is ambiguous at best, that makes it very difficult to hold that an admitted breach has been duly remedied (even assuming that this is in principle possible); and on the facts of the present case I have come to the conclusion that the finding that Metropolitan's breach of the PSED was remedied in the witness box cannot stand.
Is it possible in principle to remedy a breach?
views, but I will do so more briefly than I would have done had the resolution of the appeal turned on it.
v Secretary of State for Defence [2006] EWCA Civ 1293 ("Elias") at [274] per Arden LJ ("advance consideration … before making any policy decision"), R (C (a minor)) v Secretary of State for Justice [2008] EWCA Civ 882 ("C") at [49] per Buxton LJ ("not as a rearguard action following a concluded decision but as an essential preliminary to any such decision"), Bracking at [26(4)]. But these were all cases concerned with one-off decisions: a decision limiting eligibility for compensation for wartime internment to those who were, or whose parents or grandparents were, born in the UK (Elias); a decision to introduce an amendment to rules for secure training centres (C); a decision to close the independent living fund (Bracking). None of them were dealing with a case where proceedings had been brought and were ongoing, which to my mind raises rather different questions.
v Southwark LBC [2015] UKSC 30 at [73] Lord Neuberger PSC referred with approval to various passages explaining what the PSED involved, including that given by McCombe LJ in Bracking at [25]. But Lord Neuberger says in terms that there had been no challenge to those statements in the appeals before the court, "and in my view, at least as at present advised, rightly so". That shows that he had neither heard argument on the point nor was purporting to decide anything finally; moreover there was no question in those cases of a breach having been purportedly remedied. I do not think it takes matters any further.
v Norton [2011] EWCA Civ 834 ("Norton"), Powell v Dacorum [2019] EWCA Civ 23 ("Powell"), Forward and Taylor v Slough BC [2020] EWHC 3520 (Ch) ("Taylor"). To these can be added other cases where a PSED assessment has been carried out belatedly: R (West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 ("West Berskhire"), R (Rowley) v Minister for the Cabinet Office [2021] EWHC 2108 (Admin) ("Rowley").
"One must be careful not to read the judgments (including the judgment in Bracking) as though they were statutes. The decision of a Minister on a matter of national policy will engage
In Forward Longmore LJ cited both that passage and what Lloyd LJ had said in Norton without expressing any doubts about them (at [24], [28]). It was suggested by Ms Monaghan in her written submissions that we should hold Norton to have been decided per incuriam. I do not think we should, Norton having been referred to at least twice by this Court (in Powell and Forward) without disapproval.
"That is not to say that the fact that the PSED was not complied with at the earlier stage is irrelevant to the question of later compliance. It is always necessary to find that the public authority has complied in substance, with rigour and with an open mind with the PSED. Where a public authority has commenced proceedings without complying with the PSED, it is important to guard against the risk that its subsequent purported compliance when deciding to continue the proceedings was tainted by the incentive not to depart from a decision already made. That, however, is relevant to the question of fact – whether it has complied with the PSED in the particular circumstances – and is not a bar to it curing the breach as a matter of law."
In practice I suspect it would normally be unlikely that evidence given in cross-examination would meet this test for reasons I have already touched on (paragraph 39 above). But I do not think one should be too dogmatic about it – if it became apparent at trial that there was some minor point that had been overlooked it might be possible for the decision-maker to confirm that, having taken it fully into account, it made no difference.
very much whether one refers to that, as Fordham J did in Rowley at [59], as a case where the relevant body is "not in present or continuing breach"; or, as Longmore LJ did in Forward at [26], as a case where subsequent compliance at a later stage has "compensated for earlier non-compliance"; or whether one says that in such a case the Court may refuse relief either under s. 31(2A) SCA 1981 or as a matter of discretion. The significant point is that although breach of the PSED can be relied on as a defence to a claim for possession, if it has been complied with, albeit belatedly, the Court is not obliged to refuse the claim for possession, any more than it is obliged in judicial review proceedings to quash a decision where there has been belated compliance: Forward at [31], [36]. The Court does not act as some sort of mentor or nanny to decision-makers (ibid at [25]) and its approach should not be that of a disciplinarian, punishing for the sake of it (West Berkshire at [87]).
Ground 2 – s. 31(2A) SCA 1981
very shortly. The Recorder said nothing about s. 31(2A) 1981. The Judge however said that on a fair reading of the Recorder's judgment it could safely be concluded that it was highly likely that Metropolitan would have reached the same decision if it had properly reconsidered the Equalities Act Report in the light of Dr Koch's report that TM lacked capacity.
v Havering LBC [2015] EWHC 3193 (Admin) at [55] that that might well have been the intention. She did not however press the argument in oral submissions. In the light of the conclusion I have already come to, the point does not arise, but I think she was well advised not to: see R (Goring-on-Thames Parish Council) v South Oxfordshire DC [2018] EWCA Civ 860 at [47] where this Court described the proposition that s. 31(2A) applies only to conduct of a procedural or technical kind as a surprising concept, it having regularly been applied to substantive decision-making both at first instance and in this Court, and expressed the view, albeit without full argument, that it was on the face of it mistaken.
Disposal
Metropolitan would undertake a further PSED assessment before applying to enforce the order. I do not think that can be right. If Mr Print's evidence was not sufficient to cure the breach, as in my view it was not, then the proceedings, although started properly, were continued in breach of the PSED. It is established by Forward that that does not necessarily require the possession order to be quashed as relief is always discretionary, but I do not see how in this case the possession order obtained in breach of the PSED could properly stand unless we thought the breach was so insignificant as not to justify any remedy. That is not my view.
Metropolitan if (having carried out a conscientious, rigorous and open-minded assessment in proper compliance with the PSED), it thought it appropriate to do so, to bring a second claim for possession based on the same incidents, or whether any such claim would be liable to fail on other grounds, such as cause of action estoppel or abuse of process. We received helpful submissions from both parties agreeing that a second action would not be an abuse, the issue being covered by the decision of this Court in Barber v Croydon LBC [2010] HLR 26 where a very similar point was raised: see at [47] per Patten LJ.
view remedied at trial. That amounted to a defence. Metropolitan's claim having failed at trial, it follows that the action should be dismissed.
Lord Justice Snowden
Lord Justice Green
"Mr Print stated that if he had to make the decision today [i.e. the day of his evidence in the trial], he did not feel he would have pursued possession proceedings; he would have tried an alternative way of dealing with the situation if that was at all possible. However, he did consider that it remains a proportionate response to the two pleaded incidents and in their context to go through this proceeding."
view whether the performance of a PSED in the witness box would always be non-compliant with the statutory duty. It is possible, one supposes, for there to arise a situation in which an earlier PSED was performed but was incomplete in some relatively modest manner and the lacuna was adequately filled later in the witness box. That, however, is a far cry from the present situation.
vein, see the comments of the Court of Appeal in RS v Brent LBC [2020] EWCA Civ 1711 at paragraph [48].
Appeal No. CA-2020-000077
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE JOHNSON
[2020] EWHC 311 (QB)
Lord Justice Green
Lord Justice Nugee
Lord Justice Snowden
Monday 20 December 2021
| METROPOLITAN HOUSING TRUST LIMITED |
Claimant/ Respondent |
|
| - and – |
||
| TM (A protected party, by his litigation friend DM) |
Defendant/ Appellant |
ORDER |
UPON hearing Ms K. Monaghan QC and Mr N. Bano for the Appellant, and Mr A. Lane and Mr L. Varnam for the Respondent, at a hearing on 4th November 2021
AND UPON considering the parties' written submissions as to remedy
AND UPON the Court handing down judgment on 20th December 2021
IT IS ORDERED THAT
Note 1 The paragraphs of the Recorder’s judgment run from [1] to [47] and then again from [1] to [84]. In this judgment I use [A1] to [A47] to refer to the first set of paragraphs, and [B1] to [B84] to refer to the second set. [Back]