January 22nd, 2019 by James Goudie KC

An individual is vulnerable to exploitation because of physical and/or mental disability. Their flat has been taken over by others to deal drugs. This is a situation known as “cuckooing”. The individual’s local authority or housing association landlord seeks a possession order, on the ground of anti-social behaviour, involving drug use, in the flat, which causes distress to fellow residents, over an extended period of time. This situation has not been considered by the Courts in the context

of the PSED until Forward v Aldrye Housing Group (2019) EWHC 24 (QB). Cheema-Grubb J in the High Court dismissed an appeal against a possession order. She held that, although the first instance Judge had failed properly to consider matters under Section 149 of the Equality Act 2010 when making the possession order on the basis of the tenant’s bad anti-social behaviour, the Judge had been entitled in the circumstances to find that a possession order was a proportionate means of achieving a legitimate aim. The tenant had not established that his vulnerability had been exploited by others to deal drugs from his flat.

No PSED assessment had been made prior to the application for a possession order being made. Cheema-Grubb J recognized that anti-social behaviour could be a consequence of the exploitation of a susceptible tenant by criminals. She said that the PSED added value to disability discrimination in that it required a broad impact assessment of proposed action. “The duty is positive … and should provide a real aid to authorities when they step back and assess whether it is appropriate to proceed with their plans”: paragraph 36. A simple proportionality assessment is not what the PSED requires. “A rigorous consideration of the impact of the decision to commence eviction proceedings, against the equality objectives encapsulated in the PSED, is required. It must be done with an open mind and not as a defensive ‘sweep-up’. This consideration must itself be set in the context of promoting the statutory objectives”: paragraph 39.

However, the inadequacy of the PSED assessment did not automatically result in a successful appeal and did not do so on the evidence in this case. There was nothing to suggest that if a proper assessment had been carried out there would have been a different conclusion.

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