Assessors in possession cases: Laidley v Metropolitan Housing Trust [2024]

The background

 Mr. Laidley was granted an assured tenancy by Metropolitan Housing Trust (‘the Trust’) in 2009. Following reports made by a neighbour from 2018 regarding persistent banging on the dividing wall between theirs and Mr Laidley’s property, very extensive efforts were made by the Trust to encourage Mr Laidley to dissuade from this behaviour, which he failed to do.  The Trust also made numerous referrals for support for Mr Laidley, which he failed to engage with.

Consequently, the Trust served a Notice Seeking Possession and commenced possession proceedings on Grounds 12 and 14 of Schedule 2 of the Housing Act 1988 (as amended) in March 2020.

Mr Laidley suffered from mental health issues and was diagnosed with delusional disorder – something that he did not accept.  During the litigation process, Mr Laidley was found to lack litigation capacity and was thereafter represented by the Official Solicitor.  This was against Mr Laidley’s wishes as he did not accept that he lacked capacity.

The possession claim was stayed due to the COVID pandemic and was ultimately listed for  a 2-day trial in April 2023.

 Mr Laidley defended the claim and raised a counterclaim on the grounds that he was disabled within the meaning of the Equality Act 2010 and that the Trust had discriminated against him in breach of that Act.

The trial

 At trial, which started on 17 and 18 April 2023, the Judge sat with an Equality Act assessor who was appointed by the Court.

 On 17 April 2023, the Court refused an application by Counsel representing Mr Laidley for the Court to define the role of the assessor and for the assessor’s advice to be given in open Court.

 On 18 April 2023, the Trust applied to adjourn the trial part-heard to enable London Borough of Brent to take further steps to try and secure better support and accommodation for Mr Laidley.  This was opposed by Mr Laidley’s Counsel, however was granted by the Judge.

 Following the period of adjournment, the trial returned to Court and concluded on 4 and 5 December 2023.  During this time, the further efforts to engage Mr Laidley had been no more successful than the previous attempts had been.

 At trial, the Trust accepted that Mr Laidley was disabled and that his behaviour arose as a consequence of his disability.  Therefore, the assessor’s focus was whether the treatment of Mr Laidley by the Trust was a proportionate means of achieving a legitimate aim.

 The Judgment proceeded to detail the evidence in the case from numerous witnesses and two consultant psychiatrists.  The findings made by the Judge included the following:

1.       Mr Laidley had caused nuisance and annoyance to his neighbour.

2.       Mr Laidley had breached the terms of his tenancy agreement and was a nuisance pursuant to Ground 14.

3.       It was common ground that Mr Laidley was disabled and that his behaviour was as a consequence of his disability, namely delusional disorder and paranoid personality disorder.

4.       There was no prospect of Mr Laidley engaging with help, stopping the noise or showing any insight as to his behaviour.  It was therefore reasonable to order possession.

5.       The Trust had engaged with and complied with the public sector equality duty, having produced three Equality Impact Assessments.

6.       The Trust’s possession claim advanced two legitimate aims: firstly, the Trust’s responsibility to protect its tenants from nuisance, annoyance or harassment from other tenants; and secondly, the Trust’s aim to use its housing stock sensibly.

7.       A possession order was proportionate in the circumstances.  As Mr Laidley was unwilling to engage with support services, the only way that he was going to get any help was by forcing the hand of the local authority by the Court making the possession order sought by the Trust.

The Court thereafter granted an order for possession in favour of the Trust and, having found that the steps taken by the Trust were in pursuit of a legitimate aim, dismissed Mr Laidley’s counterclaim alleging discrimination and breach of the Equality Act 2010.

The Appeals

The appeals brought on behalf of Mr Laidley were twofold, with both relating to the Court’s use of the Equality Act assessor:

1.       The Judge was wrong to refuse to disclose the assessor’s evidence to the Court; and

2.       The Judge sought the assessor’s advice on proportionality and legitimate aim, which were not issues within the assessor’s competence, and did not rely on their advice in relation to the issue of whether Mr Laidley was disabled or whether the Trust had breached the public sector equality duty.

What is an assessor and when are they required?

An Equality Act assessor is an individual who has particular skill and experience in issues involving discrimination who is instructed to assist the Court to evaluate evidence of fact.

Section 63(1) of the County Courts Act 1984, which deals with appointment of assessors, states as follows:

‘In any proceedings in the county court a judge of the court may, if he thinks fit . . ., summon to his assistance, in such manner as may be prescribed, one or more persons of skill and experience in the matter to which the proceedings relate who may be willing to sit with in the county court a judge of the court and act as assessors.’

Furthermore, Section 114(7) of the Equality Act 2010 states:

“In proceedings in England and Wales on a claim within subsection (1), the power under section 63(1) of the County Courts Act 1984 (appointment of assessors) must be exercised unless the judge is satisfied that there are good reasons for not doing so.

The relevant rules relating to assessors can be found at CPR 35.15, which includes as follows:

(2) An assessor will assist the court in dealing with a matter in which the assessor has skill and experience.

(3) An assessor will take such part in the proceedings as the court may direct and in particular the court may direct an assessor to –

(a) prepare a report for the court on any matter at issue in the proceedings; and

(b) attend the whole or any part of the trial to advise the court on any such matter.

(4) If an assessor prepares a report for the court before the trial has begun –

(a) the court will send a copy to each of the parties; and

(b) the parties may use it at trial.

Judgment on appeal

In respect of the two Grounds of appeal advanced by Mr Laidley, the High Court decided as follows:

1.       Ground 1: The Judge was wrong to refuse to disclose the assessor’s evidence to the Court

Having considered various case law authorities, the Court concluded that assessors may be used in a variety of contexts and as such, it was not possible to set out any universal rule as to the nature of the assistance that assessors will provide to the Court and the extent to which disclosure of their advice and evidence will be required.

Instead, the Court stated that the role of the assessor will turn on the nature of the case, the particular issues that are in dispute and the extent to which the judge considers that assistance is required.

In this particular case, by the time the matter proceeded to trial, it was common ground between the parties that Mr Laidley was disabled within the meaning of the Equality Act 2010 and that the conduct that he engaged in was caused at least in part by his disability.  As such, the role of the assessor in this case was not to give evidence as to matters of fact regarding Mr Laidley’s disability, but rather, to assist the Judge in the evaluation and assessment of the evidence in order to determine whether the Trust’s claim was proportionate.  The Court therefore conclude that this was an example of a case where no general obligation of disclosure arises.

The Court therefore concluded that the assessor’s role in this case did not require them to disclose their advice.

Accordingly, this Ground of appeal was dismissed.

2.       Ground 2: The Judge wrongly used the assessor, by seeking their advice on issues that were not within their competence, and not seeking their advice on issues that were within their expertise.

At the date of trial, the parties were agreed that Mr Laidley was disabled and that his behaviour arose as a consequence of his disability.  Therefore, the central disputed question was the proportionality of the Trust’s actions in relation to Mr Laidley.

The Court found that the assessor’s experience in weighing and evaluating evidence was a matter that the assessor was well-qualified to assist with and that if Mr Laidley’s representative had considered that the assessor’s qualifications had rendered them unable to assist with the issues that remained in dispute, then he could have made that submission.  However, he did not.

With respect to the public sector equality duty, the Judge at trial concluded that the Trust had engaged with its duty and had discharged its responsibilities.  The Judge had therefore regarded those assessments as raising proportionality issues and, given the assessor had provided assistance in relation to the proportionality of Mr Laidley’s treatment by the Trust, it appeared to the appeal Judge that it was likely that the assessor did provide advice on this issue.

However, even if the assessor had not, the appeal Judge noted that the trial Judge had a wide discretion regarding the use of an assessor.  Mr Lindley’s appeal did not identify anything to suggest that, if an assessment of the public sector equality duty was made without seeking the advice of the assessor, this was procedurally unfair or contrary to Section 114(7) of the Equality Act 2010, Section 63(1) of the County Courts Act or CPR 35.15.

Therefore, this Ground of appeal was also dismissed.

What can you take from this Judgment?

Assessors can be routinely expected in cases where the Court requires assistance with difficult legal issues, for instance, issue of discrimination defences and counterclaims under the Equality Act 2010 and Judges should seek the assistance of assessors unless there is good reason for not doing so.

In particular, this case clarifies important legal principles regarding assessors, including that parties may not always be entitled to be privy to the advice which has been provided by an assessor.

Whilst Mr Laidley’s appeals have been refused by the High Court, we understand that permission has been granted to appeal to the Court of Appeal and so this case will be one to watch!