The appellant, TM, is an adult diagnosed with schizoaffective disorder and treatment-resistant paranoid schizophrenia. He had been occupying one of seventeen housing units in a supported living accommodation under an agreement with the Housing Trust. As a consequence of inappropriate and violent behaviour, the Housing Trust served notice on TM and on 12 September 2018 issued a claim in the county court for possession of the property.
Prior to commencing proceedings, the Housing Trust’s officer had considered the PSED and determined on the information available to him that it was appropriate to pursue the claim.
Prior to the first hearing, the Housing Trust received a psychiatric report on TM. It was accepted by both parties that the PSED is an ongoing duty and that the Housing Trust should have re-considered the PSED and the appropriateness of continuing the proceedings in light of the highly relevant report.
The recorder at first instance concluded that the breach had been remedied during live evidence when the Housing Trust’s officer confirmed that, had he reviewed the report at the time of his decision he would not have commenced the proceedings, but that now it was reasonable and proportionate for them to continue. The possession order was granted.
The appellant appealed the decision at first instance to the High Court and the appeal was dismissed. The appellant was subsequently granted permission for a second appeal, this time to the Court of Appeal.
TM’s appeal to the Court of Appeal was on two grounds:
- The judge was wrong to find that the officer had remedied the breach of the PSED whilst giving evidence.
- The judge was wrong to uphold the order for possession in circumstances where Metropolitan had breached the PSED and Metropolitan's own evidence was that it would have reached a different decision if the breach had not occurred. In doing so, the judge erred in law as to the correct application of the "highly likely test" set out in s. 31(2A) of the Senior Courts Act 1981 ("SCA 1981") .
Finding in favour of TM on both grounds, the claim for possession was duly dismissed just before Christmas.
Ground one – was the breach of the PSED remedied by the Housing Trust’s officer’s evidence?
It was accepted by both parties that the failure to re-consider the PSED on receipt of the psychiatric report amounted to a breach of the PSED. However, the Housing Trust argued that the breach had been remedied when the officer gave evidence at the trial.
The Court of Appeal accepted that it was possible to remedy a historic breach of the PSED by properly re-considering the duty at a later date, but ruled that had not happened in the present case. In his judgment, Mr Justice Johnson explained the basis for the conclusion as follows (paragraphs 38-39of the judgment):
“…The PSED requires the assessment to be carried out with an open mind (see above), and it is good practice for a decision maker to keep records demonstrating consideration of the duty, as proper record-keeping encourages those carrying out the relevant function to undertake their disability equality duties…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
“Expecting a witness "in effect" to carry out an assessment in the witness box, with all the pressures that that brings, is self-evidently about as far removed from that as one could imagine. As has been said more than once, there is an obvious danger of confirmation bias whenever a decision-maker carries out an assessment in relation to a decision that has already been made, rather than in advance; and this is perhaps particularly so in the case of litigation, when costs have already been incurred and the incentive to pursue the proceedings to a successful conclusion can be 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.” [Emphasis added].
Ground two – was it “highly likely” that a different outcome would have occurred but for the breach of the PSED?
The Court of Appeal then went on to consider and uphold the second ground. Mr Justice Johnson explained that to conclude otherwise would fly in the face of the officer’s evidence that if he had re-considered the PSED in light of the report then he would not have commenced proceedings (paragraph 53 of the judgment).
This case is relevant for all those persons working in the public sector who must have regard to the PSED as part of their role.
The judgment establishes as precedent that it shall rarely - if ever - be permissible for a public body to discharge its PSED through live evidence. The PSED is a duty to carry out a proper process, not to procure any particular outcome, and it has to be exercised “in substance, with rigour and an open mind”. Although there may be exceptions, such requirements are almost always incompatible with giving live evidence in court.
The judgment also confirms that whilst late compliance with the PSED can remedy an earlier breach (a principle that is well-known), that does not mean the earlier breach did not occur. Furthermore, late compliance shall not preclude a person prejudiced by the original breach from obtaining relief which would otherwise be available to it through the courts.
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