The importance of following your own policies

In the case of Peabody Trust v Steven Evison (By his litigation friend) Wandsworth County Court 17 July 2014 Mr E was the assured tenant of Peabody. In 2012, Mr E’s rent account began to fall into arrears. In September 2012 he was visited by a Peabody officer (the only one to deal with Mr E’s tenancy through this time). The officer noted that Mr E was hearing impaired, but said he could tell Mr E had understood him.

The rent payments stopped in January 2013 as a consequence of which the case was referred to Peabody’s welfare benefits team. The referral said that Mr E had impaired hearing and found it difficult to communicate by telephone and had difficulty managing his affairs but did not suggest any other problems. The welfare benefits team attempted to contact Mr E but he did not engage. Possession proceedings were issued and an outright possession order made when Mr E did not attend the hearing.

Mr E was then found a solicitor who promptly made an application to set aside the possession order on the basis of his concerns over Mr E’s capacity to conduct litigation. A report was obtained from a consultant psychiatrist which confirmed that Mr E did not have capacity to conduct litigation under the meaning of the Mental Capacity Act 2005 and that Mr E also had multiple disabilities – bi lateral deafness & learning disabilities – and had great difficulties in reading and writing, which impacted greatly on dealing with the benefit system.

Peabody has a written policy on dealing with vulnerable tenants (as it must) and that policy is described in the judgment as ‘a model of its kind’. Mr E, the Court found, would clearly fall under the definition of a vulnerable tenant because he had learning difficulties,  mental health needs, significant problems with financing and budget, was at risk of losing his home and was illiterate. Peabody admitted it did not follow or operate the policy.

The judge said “Of course it is not necessarily the case that had [Peabody] followed the policy and fulfilled the promise that the position in relation to arrears would be any different to that which it is now but I considered that it may well have been. It may well have been that given the support envisaged [Mr E] would have been given assistance to get HB and get a back date of HB and that would have resulted in arrears being half what they are now. Of course [Peabody‘s] failure to follow its own policy does not mean that [Mr E] has a defence to the claim for possession but it is simply something I have to weigh in the balance when considering reasonableness. I consider it right to give it a considerable amount of weight. Especially given the clear evidence in Dr. Daly’s report.

On the Equality Act 2010,  Mr E alleged a breach. The Court found that the possession proceedings had arisen as a consequence of Mr E’s disability, due to the rent arrears arising from his inability to sort out benefits through his disabilities.

The court found that the pursuance of the possession proceedings was not proportionate or in pursuance of a legitimate aim and so the making of the possession order was not reasonable and so the claim was dismissed

This case illustrates that there is no point in having a policy on vulnerable tenants if it isn’t followed. It is simply inviting a public law/Equality Act defence of the kind run here. When there is evidence of someone’s vulnerability and disability – as with the psychiatrist’s report here, disclosed in the course of proceedings – this should be considered and acted upon, not ignored because legal proceedings have been started.