Emma Turnbull considers the Public Sector Equality Duty and ‘belated compliance

9 Feb 2022

The Public Sector Equality Duty and belated ‘compliance’

The Public Sector Equality Duty is an integral mechanism for ensuring that public sector organisations (such as government departments, local councils, and social housing providers) integrate the aims of anti-discrimination legislation into the day-to-day business of public decision making. Yet the way in which the duty is interpreted by the courts gives considerable scope to public bodies to stretch the manner and timing of their compliance.

This post will explore whether a lax judicial approach risks watering down the protection it affords to vulnerable tenants facing possession claims by their social landlord.

What is the Public Sector Equality Duty?

All public authorities, when exercising any of their functions, are subject to the Public Sector Equality Duty (PSED). The PSED is set out in section 149 of the Equality Act (EA) 2010. It requires public authorities to have ‘due regard’ to the need to: 

  • eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by EA 2010;
  • advance equality of opportunity between persons who share a ‘relevant protected characteristic’ and persons who do not share it; and
  • foster good relations between persons who share a ‘relevant protected characteristic’ and persons who do not share it.

The courts have developed some general principles to demonstrate what ‘due regard’ requires in practice:

  1. The decision-maker has a duty to carry out a proper process, not procure a particular outcome (Hackney London Borough Council v Haque [2017] EWCA Civ 4, [2017] HLR 14, CA, [20]-[23]).
  2. The PSED is not a free-standing duty, but ‘informs’ they way public authorities perform their duties derived from other laws (McMahon v Watford Borough Council (2020) EWCA Civ 497, [68]: a case on the relationship between the PSED and the homelessness vulnerability assessment).
  3. The duty must be exercised “in substance, with rigour and with an open mind” (Metropolitan Housing Trust Ltd v TM [2021] EWCA Civ 1890, [37] citing Brown v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [92]).
  4. It is not a “tick-box exercise” (R (Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496, [30]).
  5. In principle, the duty should be complied with before the relevant decision is made (Secretary of State for Communities and Local Government v West Berkshire District Council [2016] EWCA Civ 441, [86]-[87]).
  6. However, it is also a “continuing duty” to keep the equality implications of a decision under review (Forward v Aldwyck Housing Group Ltd [2019] EWCA Civ 1334, [37]).

Is it possible to ‘remedy’ a breach of the PSED after the event?

A question which arises in recent case law is whether a breach of the PSED is ‘fatal’ to a public body in legal proceedings; to what extent can a breach of the PSED be remedied after the event?

This issue was considered by the Court of Appeal in the case of Metropolitan Housing Trust Ltd v TM [2021] EWCA Civ 1890. In this case, a social housing provider (Met) had brought a claim for possession against a tenant (TM). TM had schizoaffective disorder and treatment-resistant paranoid schizophrenia. Following various incidents, including one in which TM assaulted a staff member and another in which he exposed himself to a female resident, Met served a notice to quit on TM.

Met then received a report from TM’s psychiatrist which concluded that TM did not have capacity to conduct litigation. However, Met continued with the possession claim, and the matter proceeded to trial.

During cross-examination, Met’s decision-maker gave evidence that if he had to make the same decision today he would not pursue possession proceedings, but it remained a proportionate response to the two incidents to continue the proceedings.

The first-instance judge held that the PSED is a continuing duty, hence the psychiatrist’s report on capacity “should have led to a reassessment” and “not doing so was a breach of the PSED”. However, the Recorder went on to conclude that the “[re]assessment was in effect done when [the decision-maker] gave evidence … the evidence of [the decision-maker] is that his view it is reasonable and proportionate to pursue eviction and I agree” [28]. The Recorder went on to grant a possession order.

On appeal by TM, the Court of Appeal considered (a) whether it is possible to ‘remedy’ a breach of the PSED, and if so, (b) in what circumstances, specifically whether it could be remedied in the witness box during cross-examination.

On issue (a), the Court held that there is an obligation on the decision maker to bring any breach of the duty to an end. However, once remedied, “the Court is not obliged to refuse a claim for 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”.

In his concurring judgment Green LJ elaborated that remedying the breach

does not mean that the initial breach is ‘wiped away as if it never happened’. This is important. On first principles if a Court finds a breach by a person exercising a public law duty the Court has a discretion as to the remedy to be granted. In fashioning relief the Court will take into account all the surrounding circumstances, which will necessarily include past unlawful effects, and then choose between a range of options including quashing the underlying decision, making an order requiring something to be done, remitting the decision to be taken again, granting a declaration only, or even providing no relief if the breach was, in substance, immaterial.”

On issue (b), the Court held that remedying the breach while giving evidence at trial is not satisfactory. Green LJ expounded that:

Any person carrying out a PSED evaluation at trial will be subject to an innate risk of confirmation bias. A witness that gives an honest yet inculpatory answer to a question risks losing the public authority the case, and exposing the employer to a risk of costs. It also places the witness and employer at a reputational peril. Further, the evaluation required to be performed under s. 149 EA 2010 is a rounded evaluation encompassing a range of considerations which must be taken into account. It is a duty to be performed in a dispassionate and objective manner upon the basis of relevant evidence collected in advance. A hostile cross-examination is not an environment suited to the due performance of this assessment.”

Comment: Where does this leave the PSED?

In Metropolitan, the Court of Appeal confirmed that it is possible for a public body to remedy a breach of the PSED after the event (Taylor v Slough BC [2020] EWHC 3520 (Ch) applied). A breach will not necessarily be fatal to a public body in legal proceedings, be that possession claims as discussed here or homelessness reviews (see McMahon v Watford Borough Council [2020] EWCA Civ 497).

This decision also suggests that the courts remain reluctant to exercise a disciplinary role when it comes to the PSED. While it would be a risky strategy for a public body to leave compliance with the PSED to a very late stage in proceedings (and it is welcome that the Court of Appeal was so clear in Metropolitan that compliance in the course of giving evidence is too late), there remains a deep unwillingness for actions to be determined on what judges consider to be minor or ‘technical’ breaches.

However, advisers of tenants may be heartened by the judicial recognition that remedying a breach does not ‘wipe the slate clean’ or eradicate its effects. It is clear that the courts will not allow public bodies merely to pay lip service to their statutory duties.

In light of the Metropolitan decision, it behoves tenant advisers who are challenging decisions on PSED grounds to keep a sharp focus on the inappropriateness of the decision on the facts.

The Metropolitan Housing Trust Ltd v TM [2021] EWCA Civ 1890 judgment is published at: https://www.judiciary.uk/wp-content/uploads/2021/12/TM-v-Metropolitan-Housing-judgment.pdf.

Emma Turnbull is currently undertaking pupillage in our Housing and Immigration teams. She previously completed a PhD in history at the University of Oxford in 2017, before becoming a MP’s immigration caseworker. She will be available to accept instructions from April 2022.

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