UK Court of Appeal clarifies Public Sector Equality Duty test in repossession of social housing granted on false statements
Luton Community Housing (LCH) has succeeded in an appeal to evict Ms Nargish Durdana and her family from social housing after it discovered that false statements of income were made in their Bedfordshire Housing Register Application (BHRA) form.
Ms Durdana is a former employee of Luton Council. In 2009, she applied to the Council for homelessness assistance. Five years later, in March 2013, the Council nominated her and her family to LCH for an allocation of accommodation. In order for this to occur, Ms Durdana and her husband had to fill out the BHRA form. They falsified the form to state that they both lived at the Ms Durdana’s parent’s house and they only had £1,000 in their accounts. They stated that they had to leave the house due to overcrowding. Their application was successful, and they were granted a shorthold tenancy at the premise where they lived until now.
The fraud came to light in March 2017. Ms Durdana and her family had lived at another premise under another shorthold tenancy when filling out the BHRA form. Moreover, they owned and rented a separate property between September 2001 and March 2012 which allowed Ms Durdana’s husband hold £70,734.30 in a second undisclosed bank account. Ms Durdana also held £6,000 in another account which she claimed she forgot about.
The Ms Durdana accepted a caution in relation to three offences of dishonesty. Her husband pleaded guilty at Luton Crown Court to the offence of providing false information in order to obtain housing.
In May 2019, LCH attempted to repossess the property, however, Ms Durdana argued it would be unreasonable for LCH to seek a possession order due to the impact it would have on her and her youngest daughter who has cerebral palsy. The Ms Durdana suffers post-traumatic stress from the birth.
The trial judge ruled that the LCH was in breach of the Public Sector Equality Duty, which requires public authorities to consider how their policies or decisions affect people who are protected under equality legislation. The court found that the LCH had breached the Public Sector Equality Duty by not assessing the needs of the tenant before seeking possession. The Court maintained that LCH knew about the disabilities of Ms Durdana and her daughter, and although they had undertaken a proportionality assessment, they did not apply any proper consideration to what impact those disabilities would have if the family were evicted. As a result, to was not reasonable to order possession.
On appeal, the Court of Appeal upheld that there was a breach of the Public Sector Equality Duty, however that the test had been applied incorrectly in dismissing the possession order. The test of whether the Public Sector Equality Duty had been complied with was whether “on the facts it was highly likely that a proper PSED assessment would not have led to a different decision”. As applied to LCH, the question was whether it was high likely, as opposed to inevitable, that it would have proceeded to pursue the possession order. The Court concluded that given the public housing shortage, the LCH was justified in operating a policy removing tenants who obtained housing by deception. Therefore, it was of the view that had a proper Public Sector Equality Duty assessment taken place, LCH would have arrived at the same conclusion.
The Court of Appeal remitted the case back to the county court for consideration of whether it was reasonable to order possession.
Click here for the full judgement.