August 1st, 2019 by James Goudie KC

There is a failure to have due regard to the PSED before making a decision.  Must that decision be quashed?  No, says the Court of Appeal in Forward v Aldwyck Housing Group Ltd (2019) EWCA Civ 1334, in the context of a decision by a social housing association, exercising public functions, to bring possession proceedings against a physically disabled tenant, where it was highly likely that the decision would not have been substantially different if the breach had not occurred.

Longmore LJ, with whom Bean and Moylan LJJ agreed, said:-

“21. I would for my part decline to accept the proposition 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 the proposition that there is only a narrow category of cases in which that consequence will not follow.”

Longmore LJ then referred to the Hurley and Bracking cases and continued:-

“24. These decisions cannot be applied indiscriminately to cases in which a decision is made affecting an individual tenant of a social or local authority landlord …

In the context … of a typical possession action the court, while having regard to the importance of the PSED, will also have available to it the facts of the particular dispute and be able to assess the consequence of any breach of the duty more easily than in the context of a wide-ranging ministerial decision.”

“25. … For my part, I would resist the notion that the court should act as some sort of mentor or nanny to decision-makers. …

Rather than acting as some sort of mentor 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.”

“31. … 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 and  … the fact that the point is taken by way of defence can make no difference to that general position.

32. It seems, to me, therefore, that it was open to the judge to make the possession order (and to Cheema-Grubb J to refuse to set aside) if on the facts, there was only one answer to the claim for possession. …

33. The question therefore is whether this was an appropriate case so to conclude on the facts.

34. To my mind the answer is yes. …”

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