New Court of Appeal decision on the difficult issue of the Public Sector Equality Duty

Breach of the Public Sector Equality Duty need not always be fatal to a decision.

The Court of Appeal's decision in Forward v Aldwyck Housing Group Limited confirms that that there is no general rule requiring the courts to quash a decision where there has been a failure to have due regard to the PSED. If, on the facts of the case before it, the court can satisfy itself that it is highly likely that a decision would not have been substantially different if the breach of the PSED had not occurred, then it is not precluded from granting relief and it need not quash the decision. We explain the basis for the decision – and the need to exercise caution when seeking to rely on it.

Case summary

The case concerned an application in the county court made by a housing association for a possession order against the appellant, Mr Forward, on grounds of anti-social behaviour and causing a nuisance.  During the proceedings, Mr Forward sought to rely on the housing association’s admitted failure to comply with the PSED. He argued that such failure was fatal to the decision to apply for the possession order and that the order should not be granted on that basis.  By doing so, Mr Forward was seeking to rely on a breach of public law as a defence to a private law action, a right established by the House of Lords in the 1985 case of Wandsworth Borough Council v Winder. 

The judge at first instance found the allegations against Mr Forward established and rejected all of Mr Forward’s defences, including the breach of the PSED, which the judge concluded amongst other things was immaterial to the decision by the housing association to apply for the possession order. 

The possession order was granted.

Mr Forward appealed to the High Court to have the order set aside. Dismissing the appeal, Mrs Justice Cheema-Grubb agreed with the judge at first instance. She stated at paragraph 45 of her judgment:

“The failure to have due regard to the important matters set out in s.149 in the structured way required by the legislation was not a material error in this case. Looked at from the other end of these proceedings, it would be wholly unfair and disproportionate for me to allow this appeal because of the errors in Judge Wood's approach when the entitlement of the respondent to seek eviction and the reasonableness of making the order sought, have already been clearly established on the facts of this case.”

Not content, Mr Forward appealed to the Court of Appeal.

The Court of Appeal

The application to the Court of Appeal was made on two grounds, but only the first is of enduring significance.  

The following submissions were made to the Court of Appeal on behalf of Mr Forward in respect of the first ground:

  1. Once it was admitted that a person under the PSED had not complied with its duty, there was in principle no room for a court to exercise its discretion to grant relief.
  2. There were only two categories of case in which a discretion to refuse relief had been exercised:
  1. cases in which there had been a subsequent compliance with the duty in that particular case; and
  2. cases in which it was clear that future compliance would compensate for the prior non-compliance.
  1. Those categories of cases should not be extended and, in a case in which the decision-maker cannot say that he has remedied the breach by subsequent compliance or cannot authoritatively say that a future compliance would compensate for the earlier non-compliance, a decision reached without complying with the duty must always be quashed or, if (as in this case) such a decision results in a possession order, that possession order must always be set aside.
  2. There was no material on which it could rightly be concluded that, if the duty had been complied with, a possession order would in any event have been sought and made.

The decision

The appeal was dismissed.

Lord Justice Longmore declined to accept the proposition advanced on behalf of Mr Forward that as a general rule, if there is a breach of the PSED any decision taken after such breach must necessarily be quashed or set aside, or even that there is only a narrow category of cases in which that consequence will not follow.  Longmore LJ went on to conclude that on the facts, it was open to the judge at first instance to conclude that there was “only one answer to the claim for possession” and so to make the possession order.  By the same reasoning, it was also open to the High Court to refuse to set the order aside.  In the absence of any error of legal approach, there was no reason for the Court of Appeal to substitute its view on the facts for that of the lower courts, which must be respected.  

Longmore LJ’s explained at paragraph 25 of the judgment that:

“… the court should, in deciding the consequence of a breach of PSED, look closely at the facts of the particular case and, if on the facts it is highly likely that the decision would not have been substantially different if the breach of duty had not occurred, there will (subject to any other relevant considerations) be no need to quash the decision. If, however, it is not highly likely, a quashing order may be made.”

Accepting that to date it was correct that the remedy of quashing a decision where the PSED had not been complied with had only been refused by the courts in cases fitting the two categories described by the appellant at 2(a) and (b) of his submissions, Longmore LJ declined to accept those two categories as restrictive:

“Thus, although as a matter of fact relief has to date been refused only in the categories of case identified by Mr Vanhegan, I do not read the authorities as saying that, as a matter of law, it is only in those categories that there is a discretion to refuse relief. That would be contrary to the general rule of public law that the nature of the relief granted is a matter of discretion.”  

Context is king though, and Longmore LJ was careful in his reasoning to distinguish earlier cases from the present matter, explaining that all those other cases had involved complex or far-reaching decisions affecting significant numbers of people, whereas the present case concerned a single person and all the facts of his case were comprehensively known to the court when the possession order was made.  This distinction was critical to his decision, because, he said, it allowed the court, “to assess the consequence of any breach of the duty more easily than in the context of a wide-ranging ministerial decision.”   

At the heart of the judgment is the well-established principle of public law that whether to grant relief, and the nature of any relief to be granted, are matters at the discretion of the court.  Longmore LJ also cited case law referring to section31 Senior Courts Act 1981 (as amended), which provides that the High Court must refuse to grant relief on an application for judicial review if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.  He also made clear that if a non-material breach can be disregarded on a public law challenge, then it must also be possible for it to be disregarded when relied upon as a defence in private law proceedings (paragraph 36).

Key take aways

Although there is no substitute for compliance, Forward confirms that the key issue for the court in a case involving a breach of the PSED is whether the outcome of the decision was the “right one”. Where there has been a failure to comply with the PSED as part of a decision-making process, the error will not necessarily be fatal even where the decision is subject to legal challenge provided it is not highly likely that the outcome would have been substantially different if the breach had not occurred. 

The impact of Forward on existing case law will be welcomed by public bodies, but it will likely also be limited.  Its greatest value is to those involved in operational decisions affecting individual cases, where it will be easier to demonstrate to / provide the court with evidence to enable it to have sufficient knowledge of the facts to satisfy itself that the breach of the PSED is immaterial to the outcome of the decision under challenge.  Where the decision under challenge is more complex, far-reaching or impactful, or where there is an issue in presenting a comprehensive account of the facts, it will still be preferable to demonstrate that the breach has been or will be addressed by subsequent compliance or planned for future compliance respectively. 

If you have any queries regarding the PSED or public body decision-making processes generally, please do get in touch.  Our expert team of public law specialists will be delighted to help.

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