In Barnsley MBC v Norton [2011] EWCA Civ 834, the Court of Appeal considered the application of section 49A(1)(d), Disability Discrimination Act 1995,  to the decision of Barnsley to seek and obtain a possession order against Mr Norton and his family. Section 49A(1)(d) reads as follows:

(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.