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Housing association wins ‘cuckooing’ eviction case in Court of Appeal
A housing association has won a court case over its decision to evict a disabled man who police suspected was a victim of so-called ‘cuckooing’.
Aldwyck Housing Group, now part of 32,000-home Catalyst, was successful in the Court of Appeal earlier this week, after one of its former tenants unsuccessfully challenged a decision made by the High Court over an eviction last year.
According to court papers, the housing association obtained a possession order on Steven Forward’s Watford flat in March 2018 for “causing a nuisance or annoyance to persons residing nearby”.
Visitors to Mr Forward’s home had been using it to prepare and deal drugs, the papers said.
The police described the activity as typical of cuckooing – where drugs gangs take over the home of a vulnerable person for their operations.
Mr Forward is physically disabled with severe back, hip and knee pain down the right side of his body. He also described himself as mentally disabled too, as he suffers from depression, anxiety and a personality disorder.
Aldwyck and Watford Borough Council had warned Mr Forward that he risked eviction if the dealers kept coming to his home and the landlord offered support to keep them away, but the problems persisted until a final police search resulted in the flat being hit by a closure order from the police.
This was followed by a possession claim from Aldwyck in July 2017 on the grounds that Mr Forward had breached his tenancy agreement by causing a nuisance and using the property for illegal purposes. A trial took began in January 2018. In March 2018, Judge Wood at the Watford County Court ruled that there had been breaches to the tenancy agreement and an order for possession was made.
During the proceedings, Aldwyck admitted that it failed to consider its public sector equality duty (PSED) not to disadvantage Mr Forward under Section 149 of the Equality Act 2010 before evicting him.
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Despite this, Judge Wood disagreed that Mr Forward was cuckooed, and also rejected that Aldwyck discriminated against him with the eviction because the move “was a proportionate means of achieving a legitimate aim”.
Justice Cheema-Grubb of the High Court supported the county court’s ruling and said even with a proper equality impact assessment, Aldwyck would have decided to evict Mr Forward.
However, Toby Vanhegan, acting for Mr Forward, argued in the Court of Appeal that any possession decision reached without complying with duties around the PSED “must always be quashed” and called for the possession order to be set aside.
In response, Nicholas Grundy, representing Aldwyck, said there was ample material to show that if the landlord had complied with the PSED, it would have still sought a possession and had that possession granted.
This week three Court of Appeal judges dismissed Mr Forward’s subsequent appeal that Aldwyck’s breach of the PSED would have made a difference to the possession order and upheld the High Court’s decision.
Lord Justice Longmore, backed by Lord Justice Bean and Lord Justice Moylan, said “there should be no rigid rule that non-compliance with the PSED should always result in quashing the relevant decision”.
He added the district judge was right to conclude that there “was no viable option for the landlord other than to seek possession” so carrying out the PSED would not have changed Aldwyck’s decision.
Mr Vanhegan said the eviction should be quashed, “otherwise local authorities will have no incentive to comply with the duty and no opportunity to learn from their breach of duty”.
But Lord Justice Longmore said: “For my part, I would resist the notion that the court should act as some sort of mentor or nanny to decision-makers.”
He also dismissed Mr Vanhegan’s submission that Justice Cheema-Grubb was wrong to reject the claim that Mr Forward has a mental disability, arguing this did not affect her ruling.
Mr Forward was ordered to pay Aldwyck’s costs relating to the appeal.
Kirsty Pepper, executive director of housing and customer services at Aldwyck Housing Group, said: “We don’t take the decision to seek possession of our properties lightly, so consequently we made sure we did what we needed to do through our due diligence process.
“Mr Forward’s behaviour wasn’t only illegal but it was anti-social and we can’t ignore this.
“The decision by the court to dismiss our former tenant’s appeal is warmly welcomed and it indicates the judge is satisfied with the process we followed.
“We hope Mr Forward’s neighbours can once again enjoy living in their homes and community.”
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