Birmingham City Council v Wilson [2016] EWCA Civ 1137

In Pieretti v Enfield LBC [2010] EWCA Civ 1104 (our note) the Court of Appeal held that under (the predecessor to) the Equality Act, in the course of Housing Act 1997 Part VII inquiries, a reviewing officer was required to carry out inquiries into an applicant’s disability that the Housing Act 1996 had not previously required, i.e. where the applicant had not raised the issue but the reviewing officer was on notice that there was a possibility that the applicant’s disability would be relevant. This second appeal concerned the nature and extent of those inquiries.

Ms W was owed the full homeless duty by Birmingham. She and her two sons had been in temporary accommodation on the 11th floor of a tower block. Birmingham made an offer of permanent accommodation of a flat on the 8th floor of another block.

Ms W refused the offer and sought a review. In the review, she stated, for the first time, that her sons had a fear of heights and that living on the 11th floor was impacting their mental health. There was also contested and unclear evidence that she may have mentioned a dislike of tall buildings on the part of one of her sons at her initial homeless interview. No medical evidence was put forward in the course of the review. Following a ‘minded to’ letter, Birmingham’s review upheld the suitability of the offer.

(Subsequently, well after the review decision at issue, one of Ms W’s sons was diagnosed with “an autistic spectrum disorder, being a mental impairment with a substantial and long term effect on his ability to carry out normal day to day activities which include using a lift; he suffers from a fear of heights and lifts; is claustrophobic and has panic attacks when he enters a lift or looks out of a window in a high building”.)

Ms W appealed the review decision on the basis that the Council had failed to make necessary inquiries as it should have done, in order to determine whether one of Ms W’s sons was “disabled” for the purposes of the 2010 Act by reason of his fear of heights and claustrophobia.

At first appeal, Ms W was successful.

On 17 April 2015 the judge allowed Ms Wilson’s appeal. He held that the review decision was unlawful in that it was based on inadequate inquiries into Romareo’s fear of heights and claustrophobia, and whether those conditions amounted to a disability for the purposes of the 2010 Act. The judge directed himself by reference to the leading case of Pieretti v London Borough of Enfield [2010] EWCA Civ 1104; [2011] 2 All ER 642 and said this at para. [13]:

“In my judgment, once there is evidence that suggests, as in my judgment was clearly the case here, that there was a real, as opposed to a fanciful, possibility of there being mental disability, then the obligation to make further enquiry is engaged. As was made clear in Pieretti at paragraph 33, the law does not require that in every case decision-makers under section 184 or section 202 must take active steps to enquire whether the person to be subject to the decision is disabled. That would be absurd and I agree. However, once the evidence suggests a real possibility, then those steps must be taken. In this case, I am satisfied that such a possibility existed on the basis of the information that was available and, consequently, this appeal must be allowed for that reason, there having been no enquiries made.”

The Court of Appeal overturned that decision.

By the time Mr Kennelly took the final decision on 7 November, he had gone through a process of inquiry which allowed him rationally to decide that, whatever might have been the position at the start of his investigation, there was no real possibility at the end of it, on the information available, that either child had a disability for the purposes of the 2010 Act. In the absence of any indication that Ms Wilson thought that any issue of such gravity had arisen as to need her to address it by seeking any professional advice or diagnosis, Mr Kennelly could rationally assess the position to be one where the children’s fear of heights was within the normal spectrum and not indicative of any possibility that they had a disability within the meaning set out in the 2010 Act.

The rationality of that conclusion is underwritten, in particular, by the fullness of the reasons set out by Mr Kennelly in his “minded to find” letter of 29 October, in which in effect he explained that he considered that the children’s fear of heights was within the normal range and hence that they did not have a disability. His explanation was not in technical language and I think was readily understandable by an ordinary person. Ms Wilson must have understood that if she wished to contest that assessment or could point to anything which indicated that it was wrong, and that in fact Romareo’s fear of heights was something outside the normal range, now was the time to do so. Yet she did not respond to that letter to contest Mr Kennelly’s assessment, despite the invitation to do so.

Hence by the time of the final review decision by Mr Kennelly on 7 November, he had correctly focused on the question of the difficulties experienced by Ms Wilson’s children owing to their fear of heights; he had taken reasonable steps according to the Khatun standard to gather information on that topic (including by asking Ms Wilson for anything further she could bring forward); and he had concluded – and concluded rationally – that there was no real possibility that either of the children was disabled for the purposes of the 2010 Act. According to the guidance given by Wilson LJ in Pieretti, therefore, by 7 November Mr Kennelly was not subject to any further obligation of investigation by virtue of section 149 of the 2010 Act.

In my view, with respect to the judge, he erred at para. [13] of his judgment in his application of the Pieretti guidance in the context of this case. He applied his own judgment to the question whether there was a real possibility of there being mental disability (holding that there was), rather than asking the correct question, which was whether Mr Kennelly could rationally conclude by the end of his investigation that there was no real possibility of either child having a mental disability.

In short, the review officer had not ignored the possibility, but had asked for any further information on the fear of heights to be put forward. In the absence of anything further and on the information available, he was entitled to decide that there was no relevant disability.

Appeal granted.

This does sit rather oddly with the Court also noting that there had been a subsequent diagnosis that one of Ms W’s sons did indeed have a condition which would be a disability for purposes of the Equality Act 2010, but it was of course the rationality and lawfulness of the review officer’s decision the year before that was at issue in this appeal.

However, it is worth noting, as a general point, that the Court of Appeal was also concerned about the provision of information as to the effect of refusal of a direct offer.

Although we have not been shown all the literature provided to Ms Wilson, I have my doubts whether this choice and the consequences of each option were really fully explained to Ms Wilson in a way she could understand. The offer letter of 1 September 2014 only included this (to my mind, rather uninformative) statement on the subject: “You can ask for a review if you do not agree that the accommodation is suitable. You have this right whether you decide you accept or refuse this offer of accommodation”. In addition, on about 5 September 2014, when she sought to complain about the Thornton House flat allocated to her, she was also given the Council’s Homeless Decision Review Form to fill in, which has a series of boxes on the first page to be ticked to indicate which option of challenge is chosen, including box f (“You have accepted the offer of accommodation. However, you do not consider that the offer made was suitable to discharge the Council’s duty to provide accommodation”) and box g (“You considered the offer made was not suitable to discharge the Council’s duty to provide accommodation”). Again, this form does not explain the consequences of each option. Ms Wilson initially ticked box f, but crossed that out and ticked box g instead. In this way she indicated her choice to reject the offer outright.

I have gone into this in a little detail because one might have thought that, since Ms Wilson and her sons had been managing (however awkwardly) to live in the 11th floor flat at Century Tower for some months by September 2014, the less risky course for her, all things considered, might have been to accept the offer of the Thornton House flat while at the same time requesting a review of its suitability. That way, even if she lost the argument about suitability, she would still have had the benefit of a flat rather than losing her priority status in the quest for allocation of social housing. The case before us does not turn on any of this and we had no evidence to explain in detail how Ms Wilson came to make her choice. However, I think it would be desirable for the Council to review how it presents this choice between acceptance of offer plus review and rejection of offer plus review, and the consequences of each option, in its standard forms and any literature given to applicants for social housing.

A concurring judgment also highlights this point. Where the decision at stake is so significant for the duty owed and the consequences for the homeless household, it is very important that the options – including acceptance with a review of suitability request – are set out very clearly for the homeless applicant.