(1) Every public authority shall in carrying out its functions have due regard to … (d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons.

There was an Article 8 defence but the appeal was decided on the basis of this provision (and its successor, s 149, Equality Act 2010), with some interesting crossovers (on which, see below).  My sense is that Norton is an important case which will be relied on by both public landlords and their occupiers as it can be read as supporting both; nor, I suspect, is it the last word on the subject by any means.

Mr Norton was a school caretaker who was dismissed on the grounds of misconduct; his accommodation was provided by Barnsley for his employment.  Barnsley sought and obtained a possession order against him and his family.  They needed the accommodation for the new caretaker and established their right as a matter of law to do so.  The issue, though, was that it was known to Barnsley that Mr Norton’s daughter (Sam) suffered from a significant disability (cerebral palsy and childhood epilepsy).  Barnsley had not made any assessment of Sam’s disability.  HHJ Swanson made the possession order on the basis that the failure to conduct such an assessment would have made no difference because, even if it had done so, the decision would have been to seek possession.

Bravely (given the roasting that counsel for Enfield got in Pieretti), the council’s primary submission was that s 49A(1)(d) did not apply to the decision whether or not, and if so when and how, to bring possession proceedings.  Pieretti was, it will be remembered, a case as to whether that section applied to the functions under Part 7, Housing Act 1996.  In pretty strong terms, the Court of Appeal held in Pieretti that it clearly did so (“There is no scope for depriving the word ‘functions’ of much of its normal meaning …[it] is designed to secure the brighter illumination of a person’s disability so that, to the extent that it bears upon its rights under other laws, it attracts a full appraisal”: at [26]).

Here, the Court of Appeal dismissed the council’s primary submission on the basis that “… the section is entirely general.  It applies to the carrying out of any function of any public authority” (at [15]).   However, there is an interesting proviso to that comment:

On the other hand, it does not necessarily follow that whenever a public authority is considering or exercising any function, whatever it may be and in whatever circumstances, it must give conscious thought to how it might affect a disabled person.  It is not necessary for us to decide what is the scope of the circumstances in which the duty would come into play.

That did not arise on the facts of this case as it was obvious to any decision-maker that Sam’s way of life and wellbeing might be substantially affected by the outcome.

The council’s alternative submission was that even though section 49A(1)(d) had some relevance to the possession claim, Part 7 “provided the whole answer to the question” because Sam’s needs would be fully considered as part of that decision-making process (in parenthesis, it may be noted that there was no consideration about whether the Norton household might not cross the obstacles in Part 7, ie intentionality, but it did also appear that the council were exploring their options under both Parts 6 and 7 for rehousing).  It was pointed out that it may well take a considerable time for suitable accommodation to be found for Sam and that the household would have to live in temporary accommodation in the meantime that may well be less than suitable.  Lloyd LJ noted that section 49A(1)(d) and its successor, section 149 Equality Act 2010, applied to that duty; and the council would have control over the process of enforcing the possession order  to which, again, section 149 would be applicable.

Lloyd LJ said that it would have been perfectly rational for the council to begin possession proceedings to establish its right and then give consideration to Sam’s needs before pressing for a possession order; but that was not the council’s position.  It was incumbent on the council to to have regard to the need to take steps to take account of Sam’s disability before enforcing the possession order and to reach a conclusion on that issue.  Of particular interest here was Lloyd LJ’s application by analogy of the well-known paragraph in Pinnock, at [64], where the point was made in relation to proportionality that the availability of alternative accommodation would be a relevant consideration in a possession claim against a vulnerable household: “‘the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases’”.  Lloyd LJ made clear that section 49A(1)(d) does not allow the council to leave the question of Sam’s accommodation over to be dealt with under Part 7 (at [30]).

The next issue concerned remedy and this is an equally important part of the judgment because the Court decided not to set aside the possession order or dismiss the proceedings.  The council had a need for the property and an unqualified right to it; although it was in breach of its duty before the proceedings were started:

… it would be open to it to remedy that breach by giving proper consideration to the question at any later stage, including now in the light of our decision.  What is needed is for the Council to give proper consideration to the factors which are relevant under section 49A(1)(d), above all to the need for suitable accommodation to be found for Sam, her parents and her baby. … the Council can decide whether, and if so when, the possession order is to be enforced, and its decision in that respect is also one in taking which it is under the section 49A(1)(d) duty, or rather, now, the equivalent duty under the Equality Act, section 149.

The council’s duty to Sam is a continuing duty.  If the matter had been raised in the administrative court, it would have been open to that court to say that the council’s actions should not be set aside, “… if the court considered that the Council could now be relied on to exercise its relevant future functions properly, with (of course) the sanction – if it were not to do so – of further proceedings whether by way of judicial review or under (if relevant) Part 7 itself” (at [36]).  Further, the position would not be different under Article 8.

There may well have been a spat between the members of the court on the extent of the duty under the DDA.  Lloyd LJ said that “The decision of this appeal may serve to reinforce that which the courts have been saying for some time, calling on public authorities to face up to their obligations under section 49A and now section 149 of the 2010 Act” (at [35]).  On the other hand, Carnwath LJ, while agreeing with the analysis that the DDA was applicable on the facts of this case, made the point that

… the content of the duty should not be overstated … it did not necessarily require [the council] to take any immediate action to secure suitable alternative accommodation.  Their ‘due regard’ was to be to ‘the need to take steps to take account of (her) disabilities’.  As I read it, it was enough that they should have in mind the need to take such steps at the appropriate time.  They were also entitled to take account of the practicalities. (at [43])

And at [45]: once it had been decided that there was no valid defence to possesion and the council’s claim was compelling, there was no reason to delay a possession order.  The judge was entitled to trust the authority to carry out its duties under the housing legislation; so he agreed with the judge’s decision.  So, it might be taken from this that Carnwath LJ was dissociating himself from the comments about the applicability of Pinnock at [64].

It is to be noted that Kay LJ explicitly agreed only with the judgment of Lloyd LJ.

This was the appeal of the first instance decision in Mr Beedle’s claim under the Disability Discrimination Act 1995, Section 24C. We reported that case here. As we noted in that report, this is of significance for the Equality Act 2010 as the relevant provisions on auxiliary aids or services are virtually the same.

I won’t rehearse the facts at length, but Mr B was the assured tenant of GNC. His tenancy agreement made internal decorations his responsibility. It was accepted that the decorations were in a poor, rather tatty state, although dreadful. Mr B was disabled and unable to use ladders or safely be near open windows, so could not decorate himself. He brought a claim that GNC should decorate in order to enable his enjoyment of the property as an auxiliary aid or service under s.24C, which states:

Duty for the purposes of section 24A(2) to provide auxiliary aid or service
(1) Subsection (2) applies where –
(a) a controller of let premises receives a request made by or on behalf of a person to whom the premises are let;
(b) it is reasonable to regard the request as a request that the controller take steps in order to provide an auxiliary aid or service; and
(c) either the first condition, or the second condition, is satisfied.
(2) It is the duty of the controller to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to provide the auxiliary aid or service (but see section 24E(1)).
(3) The first condition is that –
(a) the auxiliary aid or service –
(i) would enable a relevant disabled person to ‘enjoy’, or facilitate such a person’s ‘enjoyment’ of, the premises, but
(ii) would be of little or no practical use to the relevant disabled person concerned if he were neither a person to whom the premises are let nor an occupier of them; and
(b) it would, were the auxiliary aid or service not to be provided, be impossible or unreasonably difficult for the relevant disabled person concerned to ‘enjoy’ the premises.
(4) The second condition is that –
(a) the auxiliary aid or service –
(i) would enable a relevant disabled person to make use, or facilitate such a person’s making use, of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use, but
(ii) would be of little or no practical use to the relevant disabled person concerned if he were neither a person to whom the premises are let nor an occupier of them; and
(b) it would, were the auxiliary aid or service not to be provided, be impossible or unreasonably difficult for the relevant disabled person concerned to make use of any benefit, or facility, which by reason of the letting is one of which he is entitled to make use.

The claim failed on the Judge’s finding that ‘enjoyment’ in 24C(3) meant nothing more than the right to enjoy the premises as dictated by the terms of the lease.

Mr B appealed to the Court of Appeal.

In the Court below, Mr B had contended for an expanded sense of ‘enjoyment’, such that he could take pleasure in his tenancy rather than being made unhappy by the condition of the interior. In the Court of Appeal, Mr B had ‘moderated’ his submissions. The Court of Appeal noted that it was extremely unlikely that the draughtsman of the 1995 Act had used the term enjoyment in a more extensive manner than that set out by the House of Lords in Southwark London Borough Council v Tanner & Others [2001] 1 AC. But Mr B’s submission was now rather that:

For the appellant to be able to ‘enjoy’ his premises he ought to be able to do more than simply ‘live there’. He ought to be able to ‘live’ as would any typical tenant – whether disabled or not. – He should therefore be able to, for example: watch TV, listen to the radio, occupy himself with hobbies, have friends or family come to visit, and feel reasonably comfortable in his environment. These are the normal activities of any normal tenant, albeit that they go beyond the simple occupation of the premises.

GNC argued that there was little difference between this and the sense used by the Judge below, in that:

The use of the words “enjoy” and “enjoyment” in s.24C conveys the meaning that the tenant should be able to use those premises in “an ordinary lawful way”. That may well connote the meaning that Mr Beedles ought to be able to live in his home as would any typical tenant, whether disabled or not.

The Court of Appeal then turned to the Judge’s findings of fact in relation to the decoration. First, it was noted that GNC had said that they would not require Mr B to decorate. Secondly, the finding was that:

He can occupy the premises. Indeed he does, he lives there. He spends much time there. The nature of the disrepair is demonstrated (though with the shortcomings I have mentioned) by the photographs. To the extent that the wallpaper is peeling, it looks to me to be easily remediable in many cases, if not all, from ground level, with the assistance of a bit of paste. In cross-examination, Mr Crosfill secured agreement to the proposition that the mould or the dirt above the light could be cleaned away. A bit of sugar soap, it was said, was what was required. This is not a case in which the state of decoration is so woeful that it can be said that it would be unreasonably difficult for the claimant to continue living in the premises and enjoying the premises in that sense.

The Court of Appeal found that on the basis of this, it was impossible “to conclude that the absence of decoration undertaken by the landlord made it impossible or unreasonably difficult for Mr Beedles to “enjoy” the premises in the sense advanced now by both tenant and landlord”. The appeal would have to be dismissed.

However, given intervention by the EHRC in the case, the Court of Appeal in Moses LJ’s lead judgment decided to set out the correct approach to s.24C and s.24D. [paras 23-27]

It seems to me that that approach to the construction of the words “enjoy” and “enjoyment” does require an assessment to be made as to whether the auxiliary aid or service requested by the disabled tenant would enable him to live as would any other typical tenant in the let premises. This construction derives from Lord Hoffman’s recognition that “quiet enjoyment” connotes an ability to use the premises in “an ordinary lawful way”.

The Code of Practice “Rights of Access. Services to the public, public authority functions, private clubs and premises” (“the Part 3 Code”) provides illustrations of a landlord’s obligations under s.24C. The Code was introduced pursuant to the power contained in s.53A of the 1995 Act. A tribunal or court is required to take into account any provision of a code which appears to that tribunal or court to be relevant to any question arising in any proceedings under the 1995 Act (s.51(5)).
The appellant sought to demonstrate the width of the references to “enjoy” and “enjoyment” in s.24C by reference to examples in the Code:-
“The arthritic tenant in furnished accommodation requires a different chair in order to use the premises (15.35);
A tenant with hearing impairment has the volume on his television turned up. On complaints by other tenants the landlord provides the tenant with a set of headphones, a step which the Code describes as reasonable. The Code also describes the replacement of fuses by a management company as a reasonable step for the landlord to take.”

Although these examples were proffered in support of the appellant’s original submission, they seem to me to be sensible illustrations of the more limited submission that “quiet enjoyment” means an ability to use the premises in an ordinary, lawful way. Although these examples seem to me illustrative of the correct meaning of the section, it would be wrong in a postscript to this judgment to give any more forceful stamp of judicial approval to the examples in the Code. The examples in the Code cannot determine the meaning of the statute.

I should add that there was one point in the judgment where the judge might be understood as saying that cost of redecoration and the implications that housing associations might become liable to redecorate were irrelevant factors. The judge described that argument as “a floodgate” argument (paragraph 22). I do not agree. It seems to me issues of cost would be relevant to the question whether the steps requested were:-
“reasonable, in all the circumstances of the case, for him to have to take in order to provide the auxiliary aid or service for the purposes of s.24C(2).”

Lords Carnwath and Maurice Kay agreed, save that Carnwath LJ reserved his position “as to whether in any event the statute, in the absence of more specific words, can be read as transferring a positive contractual obligation to repair from the tenant to the landlord.”

Comment
I’m not entirely sure where this leaves us, save that ‘enjoyment’ arguably means to be able to live in a home as an ordinary tenant would. There is also the suggestion that cost could be an issue as to whether the provision of an auxiliary service or aid was reasonable in all the circumstances.

But I presume that I am not alone in not being wholly clear whether redecoration, for example, might indeed be such an auxiliary service in different circumstances to this case, where the Judge below found that the problem could reasonably be mitigated to a considerable extent by Mr B. To be able to live as an ordinary tenant would could perhaps extend to living in a reasonable state of decorative repair, even if the extended sense of taking pleasure in the premises is ruled out. If Mr B had, for instance, a permanent wheelchair user, might the relatively minor extent of works needed have weighed in the other direction?

I’m not sure that, despite the guidance provided by the Court, this case provides a clear marker for the extent or effects of sections 24C, 24D or their Equality Act equivalents. But I’m very happy to be put right in the comments.

This is an odd case, in lots of ways, but what is decided in this appeal to the Court of Appeal is potentially of broader significance and certainly useful as clarification. The issue was whether, and if so to what extent, the duty on local authorities under (1) of s.49A of the Disability Discrimination Act 1995 applies to exercise of powers and discharge of duty under Part VII of Housing Act 1996 – the homelessness provisions.

S.49A is to be replaced, at a date not yet set, by wider and perhaps stronger provisions in s.149 of the Equality Act 2010, but it seems likely that the principle in this case will continue to apply.

I’ll save the facts in this case till later. Suffice to say for the present that this was a second appeal from a s.204 appeal that nearly didn’t make it, as shortly before the Court of Appeal hearing, it turned out – to everyone’s surprise, including their own solicitor’s – that the appellant and his wife weren’t actually homeless anymore, having had two ASTs since the hearing of the s.204 appeal. (This is perhaps more understandable when one realises that the course of the case so far had been a first s.184 decision, overturned on review, new s.184 decision, upheld on review, but quashed on s.204 appeal, fresh s.202 review upholding the decision and s.204 appeal upholding review decision, then appeal to the Court of Appeal).

However, the Court of Appeal decided that a) the matter was of wider public interest and b) given that the appellant’s current AST was shortly to end, there was a [surely slim] possibility that Enfield would find that the chain of causation hadn’t been broken and that the appellant and his wife remained intentionally homeless, as per their review decision under appeal.

The question before the Court of Appeal was, principally, simply whether s.49A(1) DDA 1995 applied to the Local Authority’s exercise of Part VII Housing Act 1996 powers and duties, and if so, what that meant.

S.49A(1) states:

Every public authority shall in carrying out its functions have due regard to –
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons;
(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life.

[The italics are as inserted by Wilson LJ for his emphasis].

Then there is a code of practice:

entitled “The Duty to Promote Disability Equality” and published in 2006 by the Disability Rights Commission pursuant to s.53(8A) of the Act of 1995, described the duty created by s.49A(1) as the “duty to promote disability equality” (paragraph 1.2) and explained that it “requires public authorities to adopt a proactive approach, mainstreaming disability equality into all decisions and activities” (paragraph 1.13). The subsection provides that the regard to be paid to the six needs identified in it should be “due”; and the code explains that the word “due” comprises two linked elements, namely proportionality and relevance (paragraph 2.34)

The appellant argued that the s.202 reviewer’s decision to uphold a finding of intentional homelessness involved a breach of s.49A, as there had not been due regard to the need to take account of a person’s disabilities. This argument had apparently been raised for the first time in amended grounds of s.204 appeal, much to Enfield’s continued teeth-gnashing chagrin.

At the Court of Appeal, Enfield argued:
i) that the duty under s.49A(1) applies only to the general formulation of policy on the part of a public authority and not to its determination of individual cases.
ii) that Part VII of the Act of 1996 addresses the rights and needs of the disabled so comprehensively that there is no room for introduction into the scheme for making provision for the homeless of further protection for the disabled such as is exemplified by s.49A(1) of the Act of 1995 (pointing particularly at priority need (s.189(1)(c)), the intentionality of the homelessness “in good faith” provision in s.191(2), and suitability of accommodation).
iii) that, in its determinations under Part VII, a local authority does not carry out “functions” within the meaning of s.49A(1) until, if at all, it reaches the stage of discharging a duty (or exercising a power) to secure that accommodation is available for a person’s occupation.

On i) the Court of Appeal, in Wilson LJ’s sole judgment, held:

[The] first submission is clearly wrong. “The duty in s.49A applies both when the local authority is drawing up its criteria and when it applies them in an individual case, both of those being an aspect of carrying out its functions”: per Black J in R (JL) v. Islington LBC [2009] EWHC 458 (Admin), [2009] 2 FLR 515, at [114]. There is no scope for depriving the word “functions” of much of its normal meaning.

On ii)

[The] second submission is clearly wrong. For disability to play its rightful part in determinations made by public authorities (including under those areas of Part VII to which Mr Rutledge [for Enfield] refers) there must (so Parliament clearly considered when enacting s.49A(1)) be a culture of greater awareness of the existence and legal consequences of disability, including of the fact that a disabled person may not be adept at proclaiming his disability. The six specified aspects of the duty in s.49A(1) complement the duties of local authorities under Part VII.

on iii)

[The] third submission is clearly wrong. When, if at all, an authority reaches the stage of securing that accommodation is available to a person, it is not unreasonable to describe its function as a “housing” function. But it does not follow that, in the discharge of its prior duties (in particular of inquiry under s.184 and of review under s.202), the authority is not carrying out a function.

Overall, the duty in s.49A(1) certainly applies to Local Authorities carrying out ‘all their functions’ under Part VII Housing Act 1996. But what does this actually mean?

For what it meant in this case, we need to look briefly at the facts. Mr & Mrs P had an assured shorthold. It was brought to an end via s.21 notice and possession proceedings. They approached Enfield as homeless. The ex-landlord told Enfield that she had ended the tenancy due to non or delayed payment of rent. It was on this basis that Enfield (repeatedly) found them intentionally homeless. The actual history went as follows:

(a) the agreed rent was £850 p.m;
(b) at the outset of the tenancy the appellant paid the landlady a deposit equal to two months’ rent, viz. £1700;
(c) the entitlement of the appellant and his wife to housing benefit was not such as to cover the entire rent;
(d) adjustments to the amount of their housing benefit, particularly when made retrospective, caused considerable temporary confusion about the amount of the balance payable;
(e) in July 2007 the appellant, who, with his wife, wished to start looking for an alternative home, asked the landlady (whom they distrusted and who reciprocated their distrust) to repay the deposit but she refused to do so on the basis, clearly correct, that it was repayable only at the end of the tenancy;
(f) thereupon the appellant withheld rent equal to the deposit, viz for the months of August and September 2007;
(g) in October 2007 the appellant consulted solicitors, who advised him that he had been wrong to withhold the rent and that in doing so he risked eviction from the home;
(h) the appellant at once accepted the advice and cleared the arrears;
(i) for November 2007 the appellant, wrongly believing that the housing benefit would be paid to him rather than to the landlady, paid her £325; in fact the benefit, namely £697, was paid to her, so for that month there was an overpayment to her which she did not repay to the appellant;
(j) there was a dispute between the appellant and the landlady as to whether the rent for January and February 2008 had been paid, as a result of which housing benefit was suspended pending enquiry;
(k) knowing that the tenancy was coming to an end and still not trusting the landlady to refund the deposit, the appellant refused to pay the rent (or make the equivalent payment for use and occupation) due on 10 March and 10 April 2008;
(l) by letter dated 11 April 2008 a free legal advice service [presumably the CLS - NL], whom the appellant had consulted by telephone, gave him advice in the course of which it recited that he had withheld payments for those two months and it did not suggest that it had been wrong for him to do so;
(m) on 18 April 2008 however the judge in the county court who granted the possession order against the appellant and his wife (and who was not invited also to enter a money judgment against them) informed the appellant that he had been wrong to seek to recover his deposit by withholding the payments due on 10 March and 10 April; and
(n) accordingly, on 29 April 2008, notwithstanding his knowledge that he and his wife were soon to be evicted, the appellant cleared the arrears. [!!! NL]

This is, on any view, very far from the usual history of rent arrears or non-payment of rent. Further, on the second form of their homeless application, Mr & Mrs P had ticked a box stating that they (or at the least Mrs P) were disabled, and both Mr and Mrs P listed depression amongst other medical problems. Their GP, contacted by Enfield, stated that Mr P:

was suffering a depressive reaction to having to cope with a mentally ill son with a history of drug abuse and with a wife who had been drastically affected by the son’s problems and who had become very depressed and unable to do anything for herself; that the depressive reaction in the appellant had first been diagnosed in 1995; that he, the doctor, had last seen the appellant in respect of his condition on 6 May 2008; and that the appellant was not on any regular medication and had mainly been treated with psychological support from the practice. In relation to the appellant’s wife, the doctor said that she had severe arthritis in her neck, shoulders and hands, an osteoporotic spine with a prolapsed disc and chronic reactive depression, for all of which she took medication. “This lady”, he wrote, “is quite disabled with her chronic depression and her physical problems.”

At s.204 appeal, the CJ held that the breach of s.49A had not been raised as an issue before the review officer and, pace Cramp v Hastings BC [2005] EWCA Civ 1005, that disability was not an obvious matter that the reviewing officer should have considered. The CJ went further and found that Mr P was not disabled, (which, as Enfield conceded in the appeal, he should not have done – as a finding of fact that he had no place to make, on the basis of sketchy information collected by Enfield, and as he focussed on what Mr P could do, not what he couldn’t).

The Court of Appeal found that the dictum in Cramp relied on by the CJ – that a court should be hesitant to overturn a review decision on grounds ‘which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered’ – required modification:

32. [...] In circumstances in which a reviewing officer under s.202 (or indeed the initial decision-maker under s.184) is not invited to consider an alleged disability, it would be wrong, in the light of s,49A(1), to say that he should consider disability only if it is obvious. On the contrary. He needs to have due regard to the need for him to take steps to take account of it.

On ‘due regard to the need to take steps to take account’ of disability, this does not mean that in every case s.184 and s.202 decision makers must take active steps to inquire into whether the person is disabled and if so, in a way relevant to the decision. The duty is better phrased as ‘to take due steps to take account of disabled persons’ disabilities’, where ‘due’ means appropriate in all the circumstances.

33. [...] In R (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) the Divisional Court of the Queen’s Bench Division (Scott Baker and Aikens LJJ), at [84], described the phraseology of s.49A(1)(d) as “convoluted”. The court helpfully proceeded, at [90] to [96], to identify six general principles referable to the duty to have “due regard” in all six of the aspects specified in the subsection, including, second, that it demanded “a conscious approach” and, third, that it should be performed “in substance, with rigour and with an open mind”.

34. For practical purposes, however, I see little difference between a duty to “take due steps to take account” and the duty under s.49(A)(1)(d) to “have due regard to … the need to take steps to take account”. If steps are not taken in circumstances in which it would have been appropriate for them to be taken, i.e. in which they would have been due, I cannot see how the decision-maker can successfully claim to have had due regard to the need to take them.

In this case, the reviewing officer was in breach of the s.49A(1) duty as she failed to make inquiry into relation to features of the evidence presented to her that raised a real possibility that Mr P was disabled in a sense relevant to whether he acted ‘deliberately’ for the purposes of being intentionally homeless as per s.191(1) HA 1996, or indeed acted in good faith as per s.191(2). The history of the non-payment of rent was, to say the least, curious. There was the GP’s report pointing to 13 years of depressive illness and Mr P’s own statements on the second of the homeless application forms.

While it was possible that Mr P did indeed have no relevant disability, the law required:

the reviewing officer (and, for that matter, the initial decision-maker) to take steps to take account of the appellant’s disability, i.e. to make further inquiries into whether it existed and if so whether it was relevant to the decision under s.191. Those further inquiries she never made. [para 36]

Appeal allowed, review decision quashed, but in the circumstances no order was made for a fresh review. The appellant had sought a declaration that s.49A DDA applied to Part VII HA 1996. There was a question whether the Court had the power to make such a declaration on an appeal from a County Court decision under s.204, but as this was a binding court of appeal decision, no declaration was necessary for the judgment to have effect.

Mrs Boreh was owed the full housing duty by Ealing. Ealing offered a property in discharge of that duty, which Mrs Boreh rejected as unsuitable. Ealing found on review that it was. Mrs Boreh is significantly disabled, uses a wheelchair and cannot stand unaided for more than 2 minutes.

Her daughter saw the property on her behalf and rejected it, giving a number of reasons. of these, the one that remained significant on appeal to the Court of Appeal was the absence of a ramp to the stepped front door.

Ealing’s initial decision made no reference at all to wheelchair access via the front door or any access to the property from the outside. On s.202 review, after an inspection of the property, Ealing said that the property was,  or shortly would be, accessible via a side door and rear patio door, using an alley that had a wooden gate that ‘could be widened if necessary’ (having noted that it was too narrow for a wheelchair on a site visit), but noted that for front door access ‘a ramp would have to be installed’ and stated that ‘it was confirmed with the owner of the property that a ramp would be fitted’.

On S.204 appeal, the issue was whether a property which was currently unsuitable could actually be suitable as an offer under s.210 in view of proposed alterations, adaptations or additions to it?

The Recorder found that it could, while it was question of fact and degree the language of s.206 [sic] permitted this. [The Court of Appeal pointed out he must have meant s.210 on suitability]. The Recorder found that amongst some other adaptations, ‘there was to be a ramp to the front door’ and that ‘the gate would be widened if necessary’. There was no error in law in the s.202 review.

The Court of Appeal took a different view, based on a reading of the s.202 review decision.

There is nothing in principle wrong with the Recorder’s view that prospective alterations and adaptations make a property suitable at the time of offer, para 27:

Whilst I record that we had no argument from either side to the contrary effect, I would respectfully agree with the Recorder that the suitability of offered accommodation is not to be judged exclusively by reference to the condition of the accommodation at the time of the offer, but that the assessment of its suitability can and should also take into account any adaptations or alterations that are, at that time, proposed to be made. I would, however, qualify that by saying that I consider that any such proposals would have to be the subject of assurances that the applicant could fairly regard as certain, binding and enforceable. I also agree with the Recorder that, if the accommodation as it currently stands is unsuitable, it will be a matter of fact and degree as to whether any such proposed adaptations and alterations will be such as to make it suitable. At one extreme, the proposed adaptations may be simple, and easily and quickly effected: for example, the installation of a ramp for access purposes. At the other extreme they may involve the carrying out of such major works as to make the accommodation uninhabitable in the meantime: in such a case the property might well be regarded as unsuitable despite the proposal to carry out the works.

However, the Recorder was in error in taking into account adaptations there were being proposed right up to the point of the review decision. The cut of point for considering proposed adaptations must be the initial decision. In this case there was no discussion of access via the front door or the alleyway at the time of the decision, which focused entirely on the suitability of the interior of the property. There was no ongoing discussion between Ealing and Mrs Boreh about adaptations after the decision that would merit later proposals being included in the review decision.

As Mrs Boreh’s appeal actually focussed on the absence of the front ramp, the Court noted that it wasn’t addressed in the initial decision but was acknowledged as required by the review decision, only to be met with the inconclusive statement that a ramp would be fitted. By whom and when, and when any agreement to do so was reached, was not clear at all.

The lead judgment is by LJ Rimer, but LJ Walls’ additional comments bear quoting in full (paras 55-58):

I have to confess to some impatience that this case should not only have required an appeal to the Recorder but also a full hearing as a second appeal in this court. In my judgment, perhaps the most important issue in the case (the need for a ramp to enable the appellant to gain access to the property through the front door) could and should have been capable of resolution on the ground. That viewpoint is reinforced by paragraph 41 of the skeleton argument for the appellant in this court which states in terms that the appellant would most probably have accepted the accommodation had the offer contained any condition or undertaking to render it suitable.

As it is, however, I respectfully agree with Rimer LJ that it is the decision letter of 12 March 2007 which is the critical document, and as he has demonstrated, that letter makes no reference to the property being unsuitable because there is no ramp allowing the appellant to gain access to the property by the front door.

In my judgment, this matter could have been corrected by Ealing in a number of ways. For example Ealing could have acknowledged on the review that the property was indeed unsuitable without a ramp to the front door, and made a fresh offer, this time giving an undertaking or some other enforceable assurance (I respectfully endorse Rimer LJ’s phrase “certain, binding and enforceable”) that a ramp would be provided. By contrast, however, Ealing’s review letter of 13 July 2007 repeats in terms its view that the property “was and continues to be a suitable offer of accommodation”, and only addresses the question of the ramp with the assertion: “It was confirmed with the owner that a ramp would be fitted”. For the reasons Rimer LJ has given this is simply not enough.

In my judgment, therefore, the message of this case is that however pressed local authority housing officers may be, they must address their minds to the real issues in any given case, and where simple alterations are required to render a property suitable, those issues must be addressed with clarity and certainty in the decision letters they write.

Table of contents for Disability Discrimination

1. Catching up – Disability Discrimination and possession
2. Disability and tenancy – More on Malcolm
3. On impotent landlords and disability.
4. Disability discrimination – the comparator
5. DDA and mandatory possession
6. S v Floyd and a disability defence
7. Adjourning pending Malcolm in the Lords
8. And now Malcolm!
9. Malcolm in brief
10. Comments on Malcolm in the Lords

Following on from the previous post, and the detailed discussions that took place in the comments to that post, I wanted to try to clarify for myself the key element of establishing discrimination, which hopefully may be of use for others. In particular, I want to address who is the comparator against whom the treatment is seen to be less favourable. Bear in mind that this is a housing lawyer interpreting an employment law case, so clarification or endorsement from any passing employment lawyers is welcome.

In Malcolm, the Court of Appeal held it was bound by its own judgment in Clark v TDG Ltd (t/a Novacold) [1999] EWCA Civ 1091.

The judgment in Novacold points out that the definition of discrimination in the DDA 1995 is different to previous acts, in that it does not draw a distinction between direct and indirect discrimination, contains a defence of jusitifcation and, crucially:

it does not replicate the express requirement of the 1975 Act (section 5(3)) and the 1976 Act (section 3(4)) that, when a comparison of the cases of persons of different sex or persons of different racial groups falls to be made, the comparison must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

The crux is the interpretation of DDA 1995  s.5, which then read:

(1) For the purposes of this Part, an employer discriminates against a disabled person if -
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply;

Unless the treatment is justified, of course.

The phrasing of s.5(1)(a) is effectively the same as s.24(1) as addressed in Malcolm. The comparator for establishing less favourable treatment is ‘others to whom that reason does not or would not apply’. The question is the meaning of ‘that reason’.

The Respondents in Novacold argued that ‘that reason’ included the relation to the disability, such that the comparator would be a person who was, say, equally incapable of performing their job, but for a reason that did not relate to disability.

The appellant argued that ‘that reason’ referred specifically to the reason for the treatment (the first three words of s.5(1)(a)), the inclusion of ‘which relates to the…disability’ being simply in order to specify the link which enables the complaint. On this basis, the comparator would be a person who was capable of performing the job.

The Court’s interpretation of the, admittedly ambiguous, wording of the statute takes in the different provisions in the 1975 and the 1976 Acts, and the express requirement of comparison with the treatment of other persons “whose circumstances are the same” stipulated in victimisation cases by section 55(1) (a) of the 1995 Act. This leads it to agree with the latter view.

‘That reason’ refers to the reason for the treatment, not the link to the disability. The proper comparator is someone for whom the reason for the treatment does not apply, not someone who is the same situation but without a link to a disability.

The same phrasing as s.5(1) is found in s.24(1), so that the same interpretation arguably must be followed, as the same phrasing cannot be interpreted in different ways in the same statute, or at least not without causing huge problems.

In the case of Malcolm, this works as follows. The reason for Lewisham’s claim for possession was Mr Malcolm’s illegal sub-let, thereby ending his secure tenancy.  That reason was related to Mr Malcolm’s disability. To establish whether this was less favourable treatment, the proper comparison is with someone to whom the reason for the treatment does not apply – i.e someone who has not illegally sub-let and ended their secure tenancy. These comparators exist. Mr Malcolm was undoubtedly treated less favourably than them, so discrimination is established. Lewisham didn’t argue justification.

There are times when this comparator will not exist, as was the case in Richmond Court v Williams (see previous post). In Richmond, it appears that the ‘reason for the treatment’ was of general application, i.e. that a blanket ban on additions to the common parts meant that there was no occupant/leaseholder of the building to whom ‘that reason’ did not apply, no occupant who wasn’t refused adaptations. There was therefore no possible comparator to whom ‘that reason’ did not apply. As a result, there was no less favourable treatment with the comparator and therefore no discrimination.

Having thought about it, this is not a departure from the Novacold approach, as Justin Bates suggested in the article discussed in my last post, and as I first thought. It is not a departure because the Novacold approach to comparators is deployed, with the result that there is no appropriate comparator to be found. Understood in this way, Richmond is not an alternative to Malcolm, or the Novacold based reasoning, but rather an example of Novacold reasoning in operation.

In this light, and contra Justin’s suggestion, the reasoning in Richmond is not the same as saying that, because Lewisham would treat any tenant who illegally sublet the same way as Mr Malcolm, there is no discrimination. As mentioned above, the illegal sublet is the reason for the treatment, and there are plenty of comparators for whom that reason does not apply – Lewisham tenants who have not illegally sublet.

Novacold might be an employment case, but the interpretation of statute in the analysis of ‘that reason’ is not specifically employment related. If the House of Lords is going to change Malcolm in this aspect, it will be making a major change for absolutely all disability discrimination cases.

Table of contents for Disability Discrimination

1. Catching up – Disability Discrimination and possession
2. Disability and tenancy – More on Malcolm
3. On impotent landlords and disability.
4. Disability discrimination – the comparator
5. DDA and mandatory possession
6. S v Floyd and a disability defence
7. Adjourning pending Malcolm in the Lords
8. And now Malcolm!
9. Malcolm in brief
10. Comments on Malcolm in the Lords

I posted on Lewisham v Malcolm ten days ago. Since then a couple of commentors have raised issues and Tessa has posted on the implications of the case at Landlord Law. So it seemed worth a further look. The caveat is that what follows is my understanding of the Judgment and so is entirely capable of being wrong.

Tessa’s post makes some suggestions that I don’t think I agree with in terms of the Judgment. Tessa says:

The Judge refers in paragraph 52 to two County Court decisions, one of being a case where a Judge refused to make an order under s21 where the tenant was disabled, as examples of courts happily adapting to the DDA 95 without difficulty.

The thought of landlords being unable to evict tenants under section 21 because of the DDA will send a shiver down the spine of all private landlords, and may well result in a private determination not to knowingly let to any disabled tenant in future. This will do nothing to help the prospects of the disabled (particularly those suffering from mental illness) obtaining accommodation in the private sector.

Firstly, the reference at para 52 is to two examples put forward by Counsel for Mr Malcolm as examples of the Court’s adopting the DDA “without insuperable difficulty”. Lady Justice Harman does not criticise this assertion, but does not adopt it either.

Secondly, and more importantly, we are not given details of the s.21 case, Community Housing Association v Wye. However, I can only conceive of such a verdict being reached in a particular way.

I think that Malcolm is clear that the operation of the DDA is distinct and does not amend Housing Act 1985. By extension, neither will it amend Housing Act 1988. So it is not the case that there is suddenly a defence to a s.21 Possession claim within the terms of HA 1988. It is not the case that the Courts suddenly have the power to consider reasonableness, or to require additional grounds for possession to be met.

However, where an eviction is sought ‘for reasons related to the tenant’s disability’, then the DDA is engaged and a defence not to the possession claim, but to the lawfulness of bringing the claim is possible. S.21 Possession claims do not require grounds, so I can only imagine that the tenant was able to adduce sufficient evidence that the landlord was seeking his/her eviction for reasons related to his/her disability, without justification. This is independent of the kind of possession proceedings brought (s.21, s.8 or whatever). Thus the s.21 claim would be unlawful. Granted, this is applying the logic of Malcolm to a prior case, but even so it seems likely.

In my opinion, this is not an unwarranted interference with the private landlord’s freedom to gain possession under s.21. This is exactly the kind of discriminatory behaviour the DDA was aimed at.

As far as I can see, this is NOT a general prohibition on possession claims against and eviction of disabled tenants. It is not an interference with s.21. It is a defence of unlawfulness where the s.21 claim has been made for reasons related to the tenant’s disability.

Having said that, I completely agree with Tessa that if landlords do get the wrong idea and stop letting to disabled people, that would be a Bad Thing. This is also the kind of thing that myths quickly grow up about, so clarity about the effect of the DDA is vital.

A commentor on my previous posted asked simply, either in hope or fear, whether this meant disabled tenants with rent arrears couldn’t be evicted. The above contains the answer, which is no, depending.

William Flack commented on the previous post about the position that Mr Malcolm was left in by the Judgment, as his tenancy was not revived. LJ Arden addresses this at para 121 and 122. As the DDA defence does not override HA 1985, it remains the case that Mr Malcolm’s secure tenancy ended with the illegal sublet. As LJ Arden notes, whether he then has a contractual tenancy depends on whether the Notice to Quit was unlawful as well as the Claim for Possession. If it was unlawful, he likely has a contractual periodic tenancy, if it was not, he is likely to be a tolerated trespasser.

But I can’t quite see how an application for revival of tenancy could be made. There is no possession order to vary, no proceedings within which a s.85 application can be made.

As the DDA s.22(3)(C) refers solely to eviction, not the determination of tenancy, and as the Court of Appeal was divided over the lawfulness of the Notice to Quit (on grounds of whether knowledge of disability was required by the landlord for the act to be unlawful), Mr Malcolm’s status is unclear and likely to remain so. If the possession case had been about breach of the tenancy agreement or any other ground other than statutory determination of the secure tenancy under HA 1985, the position would be much clearer and simpler.

That turned out to be longer than I thought it would be. I’d better be right, after all that.

Table of contents for Disability Discrimination

1. Catching up – Disability Discrimination and possession
2. Disability and tenancy – More on Malcolm
3. On impotent landlords and disability.
4. Disability discrimination – the comparator
5. DDA and mandatory possession
6. S v Floyd and a disability defence
7. Adjourning pending Malcolm in the Lords
8. And now Malcolm!
9. Malcolm in brief
10. Comments on Malcolm in the Lords

Time for some substantive law at last. I missed this one while I was on holiday and have just had it brought to my attention.

LB Lewisham -v- Malcolm & Disability Rights Commission (Intervener) [2007] EWCA Civ 763. A very interesting case on the application of the Disability Discrimination Act 1995 to a possession case, well worth reading in full.

Of note:

i) Where a secure tenancy has been determined by a tenant’s action related to their disability, that determination persists as the DDA cannot rewrite the HA 1985.

ii) Where the action determining the secure tenancy is related to the disability, subsequent service of a Notice to Quit (majority decision) or alternatively pursuit of a possession claim by the landlord is unlawful. (Unless discrimination can be justified)

iii) The Court cannot make a possession order where the eviction would be unlawful under the DDA (majority) or in reliance on an unlawfully served Notice (minority)

iv) This is so regardless of actual knowledge of the disability by the landlord (a 2:1 majority decision)

v) Whether the determining action relates to the disability is a lesser test than causation

vi) Noted that the landlord’s advocate has a duty to the Court in possession proceedings against a disabled tenant to draw the Court’s attention to the fact that the act relied upon by the landlord is unlawful. This is so where the tenant has a defence under the DDA even where the tenant is not present/represented in Court.

vii) DDA s22(3)(c) does not only apply where the tenant has security of tenure. It applies to an occupier facing evcition regardless of status.

Lots to think about here.