Swan v Gill [2013] EWCA Civ 1566 apparently attracted quite a bit of attention at the HLPA conference this year, the  general consensus being that the Court of Appeal was wrong in its approach to s.149 Equality Act 2010 and I’m inclined to agree.

Mr Gill, an assured tenant, had taken over the communal areas and gardens next to his property, putting up a greenhouse, gazebo etc.  In June 2011, in an attempt to stop this, the association applied for an anti-social behaviour injunction (ASBI) against him under ss.153A and 153D Housing Act 1996.  The application took two years to come on for trial (a decision to refuse to adjourn the trial – which still ended up being adjourned for other reasons –  had been subject to its own appeal, see here).

When the case was finally heard, the Judge was concerned about Equality Act 2010 issues.  In witness evidence, Mr Gill stated that he had Asperger’s syndrome but no medical evidence was adduced in support of this.  The Judge asked the parties for further argument on the Equality Act. It was argued on behalf of Mr Gill that the association had breached the public sector equality act duty under s.149 and that the application should be dismissed (it doesn’t appear to have been in dispute that the association did not consider s.149 before taking action against Mr Gill or that the association was a ‘public authority’ for the purposes of s.149).  Although finding that the conditions for an ASBI were met, the Judge refused the application on the basis that the association had breached s.149. The Judge also found that the association had discriminated against Mr Gill under ss.35 and 15 Equality Act 2010 (even though this hadn’t been argued by Mr Gill’s representative). The Judge went completely off piste in his findings on discrimination by diagnosing Mr Gill as having Asperger’s syndrome using a medical dictionary he had to hand.

The association appealed.  In what appears to be a very sensible concession, Mr Gill’s representatives did not dispute that the Judge was wrong in his findings on discrimination.  What was in dispute was whether the Judge was entitled to find that there had been a breach of s.149. It was said on behalf of Mr Gill that, even if the Judge was wrong in his approach, the Court of Appeal, correctly applying s.149, should still refuse the application.

Coleridge J gave the leading Judgment but it is the Judgment of Lewison LJ (agreed with by Richards LJ) which is of interest.  It was argued by Mr Gill that for s.149 to be engaged, there does not have to be proof of the existence of a protected characteristic: it is engaged where it is not clear that such protected characteristic is relevant or where there is a likelihood of a person having a protected characteristic (reliance was placed on R(Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496 – a challenge to a decision by Greenwich to cease funding the community law centre- and R (Pieretti) v Enfield LBC [2010] EWCA Civ 1104 – a case which held that s.49A Disability Discrimination Act 1995, which s.149 was intended to replace, was engaged in individual cases where a local authority were carrying out enquiries under Part VII ). It was said that, in Mr Gill’s case, there was a likelihood, or at the least a possibility, that Mr Gill was disabled and, therefore, the association was obliged under s.149 to have due regard to the impact of its decision to seek injunctive relief and to consider the need to avoid or mitigate that impact.

Coleridge J’s approach was, in essence, that if this were the correct, it would have made little difference because there was no evidence that Mr Gill was disabled. Lewison LJ went much further by rejecting the proposition that a “mere likelihood of the existence of a disability” engages s.149.  Lewison LJ distinguished the case of Greenwich Community Law Centre v Greenwich LBC on the basis that:

1. it was a decision of the formulation of general policy which “takes place against the background that everyone affected by the policy will have at least three protected characteristics” (age, race and sex);
2. “Elias LJ was looking to the future, rather than dealing with whether a breach had taken place in the past in relation to a particular case” and;
3. “Elias LJ was dealing with the likelihood of actual protected characteristics arising in the exercise of public functions, not possible protected characteristics.” [40]

Pieretti was distinguished on the basis that it:

“relates to a duty to enquire in a case in which the applicants were in fat disabled and hence did in fact have a protected characteristic.  It is wrenching that statement completely out of context to seek to suggest that the public sector equality duty is engaged when on the proven facts there is no protected characteristic.” [41]

Lewison LJ concluded that:

“Where, as here, Mr Gill does not have a relevant protected characteristic I cannot see in what respect Swan Housing can be said to have failed to have due regard to the need to eliminate conduct prohibited by the Act; or to the need to advance equality of opportunity between persons who share the relevant protected characteristic and persons who do not; or to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not.” [42]

The case is of interest because it appears to suggest that in an individual case, e.g. where there is an application for an injunction or a claim for possession, s.149 (in the context of disability) will not be relevant unless it can be shown that the person seeking to rely on it is in fact disabled under Equality Act 2010.  To my mind, this appears to be a peculiar conclusion – surely s. 149 is applicable, in cases such as Mr Gill’s where a person may have a disability, to ensure that this is properly taken into account before any action is taken against them.