Equality Act 2010, possession claims and assessors

It seemed a fairly straightforward hearing – a pre-trial review in an anti-social behaviour possession claim prior to a one-day trial at the end of December – with both my opponent and I agreeing that the matter was ready to proceed. 

The district judge then threw a “curve ball”… have you thought about assessors? Now I think about a lot of things – can I get back in time to finish that urgent bit of drafting, should I expand my cooking repertoire beyond pasta and pesto and when will Manchester City implode and take their rightful place behind their classy neighbours to name but three – but never before have I thought about assessors.

Well actually that is a lie. I had been involved in a 5-day trial earlier in the year where the tenant and her partner were alleging discrimination on racial grounds against their landlord housing association in respect of the latter’s handling of anti-social behaviour complaints by and against this couple. The trial Judge there spent a good long time complaining to the claimant’s advisers about their failure to arrange for assessors to sit with him.  That was a claim brought under the Race Discrimination Act 1976, and sitting in the pre-trial review hearing I was faced with a defence which had mentioned that the defendant tenant had a disability as defined at s6 of the Equality Act 2010 (“EA2010”, the successor legislation to the ‘76 Act), talked about the impact of this on his behaviour and had made a passing reference to “reasonable adjustments”, though not identifying what these were or (crucially) when they had been asked for by the defendant or someone on his behalf.

It transpired that the district judge had “been on a course” when the issue of assessors was raised and after he had determined that they were not in fact required at trial, ostensibly because there was no complaint that the landlord’s policies were not compliant with the EA2010, I thought I had better give this some greater thought when I got back to chambers so I was ready for the next Judge who had happened to be on the same course as this one.

The Equality Act 2010 Code of Practice on Services, Public Functions and Associations1 says this about the role and purpose of assessors:

8.1  In cases about unlawful acts a judge or sheriff (in Scotland) will usually have to appoint an ‘assessor’ to assist him or her. These are persons of skill and experience in discrimination issues who help to evaluate the evidence. The Act says that unless the judge or sheriff is satisfied that there are good reasons for not doing so, they must appoint an assessor.

8.2  It would not be a good reason that the court believes itself capable of hearing the issues in the case without an assessor or that having an assessor would lengthen proceedings.  

A party to proceedings can object in writing to the court about the appointment of an assessor…

This mirrors and expands the statutory framework for assessors provided for at section 114 of the Equality Act 2010 (with my emphasis):

(1) A county court or, in Scotland, the sheriff has jurisdiction to determine a claim relating to—
(a) a contravention of Part 3 (services and public functions);
(b) a contravention of Part 4 (premises);
…
(7) 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.
…
(9) The remuneration of an assessor appointed by virtue of subsection (8) is to be at a rate determined by the Lord President of the Court of Session.

Section 63 of the County Courts Act 1984, as supplemented by CPR Part 35.15, simply allows a judgein any proceedings “if he thinks fit…[to] summonto 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 the judge and act as assessors”.

So effectively since 1 October 2010 there is a presumption now in a claim relating to, in the context of residential possession proceedings, a contravention of Part 4 of the Equality Act 2010 that assessors will be appointed “unless the judge is satisfied that there are good reasons for not doings so”.

I have highlighted “in a claim” because in many defence pleadings one sees merely the assertion of, say, a disability for the purposes of the Equality Act 2010 (s.6) and thereafter a citing of a number of key concepts such as s.13 (direct discrimination), s.15 (discrimination) , s.19 (indirect discrimination by reason of the application of a provision, criterion or practice) and s.20 (duty to make adjustments) which are said to apply on the facts and should be considered towards the central concept of reasonableness in discretionary cases.

In other words contravention of one of the Parts of the Act – such as Part 4 – is neither pleaded nor relied upon, not even section 35:

(1) A person (A) who manages premises must not discriminate against a person (B) who occupies the premises—
(a) in the way in which A allows B, or by not allowing B, to make use of a benefit or facility;
(b) by evicting B (or taking steps for the purpose of securing B's eviction);
(c) by subjecting B to any other detriment.
(2) A person who manages premises must not, in relation to their management, harass—
(a) a person who occupies them;
(b) a person who applies for them.
(3) A person (A) who manages premises must not victimise a person (B) who occupies the premises—
(a) in the way in which A allows B, or by not allowing B, to make use of a benefit or facility;
(b) by evicting B (or taking steps for the purpose of securing B's eviction);
(c) by subjecting B to any other detriment…

such that s.114(1) does not come into play, and by extension, neither does s114(7) (though remember the general s.63 County Courts Act power to appoint assessors is still available though in reality is likely to be little used).

In cases where contravention of a prescribed Part of the Equality Act – that is 3 (services and public functions), 4 (premises), 6 (education) and 7 (associations)2 – is relied upon and at issue regard should be had to Denman v Equality and Human Rights Commission [2010] EWCA Civ 1279, which concerned a strike out application involving no evaluation of the facts,  where it was held that in proceedings under the Equality Act 2010 the judge was entitled to try without assessors an application that does not require evaluation of factual issues in respect of which assessors could contribute.

It should be remembered that assessors are not there to make judicial decisions and are simply appointed to advise and educate the Judge to ensure she or he reaches a suitably informed decision.  As Civil Procedure 2012 Volume 1 states at 35.15.4:

“An assessor is likely to be of particular assistance in a case raising complex technical issues.  However, normally the use of an assessor in addition to the parties’ expert witnesses would not be cost effective except in the heaviest cases.”

So the next directions hearing or pre-trial review/case management conference I am at on any similar case when the question of assessors is raised I will be clear in determining the key questions and factors:

(1) Is this an issue covered by section 114 of the Equality Act 2010?  If so, is there any good reason why assessors should not be appointed?

(2) If section 114 does not apply, is the court of the view pursuant to s.63 of the County Courts Act 1984 that assessors are appropriate and, if so, is that a reasoned and appropriate decision?

(3) Can I really stretch to that risotto menu I saw in “Metro”?

1 The Equality & Human Rights Commission prepared and issued this Code on the basis of its powers under the Equality Act 2006. It is a Statutory Code which means it has been approved by the Secretary of State and laid before Parliament.

The Code does not impose legal obligations. Nor is it an authoritative statement of the law: only the courts and tribunals can provide such authority. However, the Code can be used in evidence in legal proceedings brought under the Act. Courts and tribunals must take into account any part of the Code that appears to them relevant to any questions arising in proceedings.

2 and see s.114(1)(e) re a contravention of ss.108, 111 or 112 relating to these Parts.