Pieretti v London Borough of Enfield [2010] EWCA Civ 1104

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.