FG, R (On the Application Of) v Royal Borough of Kensington and Chelsea (2024) EWHC 780 (Admin)

This was a judicial review of RBKC, asserting discrimination under the Equality Act 2010 in RBKC’s failure to make physical adaptations to a flat occupied by RBKC’s tenant, Ms FG, to meet her disability related needs.

The key threshold issue was whether RBKC were providing a service or public function, for the purposes of Part 3 Equality Act 2010, or whether they were managing or controlling let premises within the meaning of Part 4 Equality Act. The distinction was vital because while Part 3  provides, for reasonable adaptations

“The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

And this includes those arising from the design or construction of the building.

However, Part 4 excludes the second requirement, and only requires adaptations to provision, criterion or practice.

Ms FG

has a significant history of trauma, having suffered abuse as a child and as an adult. She became homeless in 2015 following the loss of her job as a porter, which she had held for eight years. This followed sexual and other abuse by her manager, which led her to attempt suicide.
In 2015, FG was diagnosed with paranoid schizophrenia and with depression, for which she was and is prescribed substantial medication.
In November 2019, FG was referred to the South Kensington and Chelsea Community Mental Health Team, and she has been under their care since that time.

As a result of her paranoid schizophrenia, FG experiences auditory hallucinations. Her case is that she is particularly disadvantaged by her hypersensitivity to noise, as she confuses real noise with her auditory hallucinations, which causes her anxiety that the hallucinations are worsening and/or becoming more frequent. She also experiences olfactory hallucinations, as well as hypersensitivity to smell.

It was not disputed that she had a disability for the purposes of the Equality Act.

Having been allocated a flat under a secure tenancy from RBKC in 2022, Ms FG complained of noise and smell in the flat, which affected her significantly. There were various inspections and reports, both by RBKC and by an expert for FG. On noise, various reports concluded that the minimum building regulations level was about met, and there was not a statutory nuisance. On smell, following various investigations and works, a dead rat was found in a stack pipe two floors below, and a gap to the stack pipe enclosure in FG’s flat (though this post dated the issue of the present claim).

FG claimed that in failing to carry out the work in her expert’s surveyor’s report and in failing to make the physical changes recommended in her acoustic expert’s report (which would mean chnages to the flat below), as reasonable adaptations, RBKC had

a) discriminated against FG, and continues to do so, within the meaning of sections 20 and 21 of the Equality Act 2010 in the exercise of a function; and/or
b) subjected FG to a detriment in the provision of a service contrary to section 29(6) and/or section 29(2)(c) of the Equality Act 2010.

On the provision of accommodation falling under Part 3, FG argued

i) RBKC is a core public authority exercising the public function of providing social housing, namely, subsidised housing to vulnerable members of society, in accordance with its statutory obligations, including its obligations under the Housing Act 1996;

ii) the effect of section 32(3) of the Equality Act 2010 is to exclude the application of Part 4 of the Equality Act 2010 from the function of providing accommodation where the provision is “… for the purpose only of exercising a public function or providing a service to the public or a section of the public” (emphasis added); and

iii) a local authority providing public housing at low rent to vulnerable groups in society is acting solely in the exercise of its public function: R (Nur) v Birmingham County Council (2021) EWHC 1138 (Admin), (2021) HLR 41 (our note).

RBKC argued

i) On the face of it, Part 4 of the Equality Act 2010 applies. RBKC is a person who manages premises and is a controller of let premises, namely, in this case, Flat 7.

ii) FG relies on section 32(3)(b) of the Equality Act 2010 to exclude the letting of Flat 7 from Part 4 of the Equality Act 2010, but this is wrong. The provision of Flat 7 to FG is the relevant public function, and therefore it is not provided “for the purpose” of exercising a public function, much less “only” for that purpose. But even if the provision is “for the purpose” of exercising a public function, it is not the “only” purpose. Flat 7 is also provided for the purpose of complying with RBKC’s private law contractual obligations under the tenancy agreement.

In addition,

the Second Requirement is only engaged if a physical feature puts disabled persons generally at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The Court of Appeal in Finnigan v Chief Constable of Northumbria Police (2013) EWCA Civ 1191, (2014) 1 WLR 445 (CA) made clear, in relation to the First Requirement, that the duty to make reasonable adjustments is anticipatory and is determined by reference to the needs of disabled persons as a class and not by reference to an individual in a specific case. By analogy, this also applies to the Second Requirement. FG was therefore wrong to suggest at paragraph 69 of her skeleton argument that the duty includes “the continuing and evolving duty to make adjustments in individual cases”.

The High Court held

Nur v Birmingham concerned a provision, criterion or practice of the defendant but the distinction between Part 3 and Part 4 was still significant as to whether an anticipatory duty arose (Part s) or a reactive one on the request of an individual prospective tenant (Part 4). But Nur was concerned with an allocation scheme, not with the obligations of the council as landlord, so did not directly assist. An allocation scheme was more naturally described as the exercise of a public function.

A local housing authority does not provide housing accommodation “for the purpose only of exercising a public function”. It provides housing accommodation in order to comply with its statutory obligation to do so, having exercised the public function of allocating that housing accommodation to a person. Its provision of housing accommodation has more than one purpose, including, at a minimum:
i) complying with its statutory obligation to make the accommodation available to the person to whom it is allocated pursuant to its housing allocation scheme;

ii) managing its social housing stock in the public interest, including managing the composition, preservation, quantity, and quality of the stock; and

iii) in a case (such as this one), where it is also the landlord of the relevant property:

a) complying with its private law obligations under the tenancy agreement that it enters into with the person to whom the accommodation has been allocated; and
b) complying with its statutory obligations as a landlord in relation to its tenant.

As such, RBKC’s compliance with its obligations under the tenancy agreement was not a part of its exercise of its public function.

The entry into the tenancy agreement is one of a number of consequences of the exercise of the public function of allocating social housing in accordance with its allocation scheme.

This fell under Part 4

Even if this was wrong, there was not an anticipatory duty to make reasonable adjustments under part 3 in this case.

the Second Requirement imposes an anticipatory duty to make reasonable adjustments by reference to the needs of disabled persons as a class and not by reference to an individual in a specific case. Of course, since disabilities vary widely in nature, quality, and degree, the reference to “disabled persons generally” must be understood as meaning a set of disabled persons sharing a sufficient commonality of disability as a result of which they are at a substantial disadvantage relative to persons who are not disabled in relation to a relevant matter.

There is no reasonable adjustment that RBKC can make that would reduce or eliminate the substantial disadvantage suffered by FG as a result of any auditory or olfactory hallucination that she may suffer as a symptom of her paranoid schizophrenia. To be fair, FG is not suggesting that. On the other hand, there is no expert evidence in this case that either the Noise Issue or the Smell Issue arises to the level of a statutory nuisance. Accordingly, as to RBKC’s anticipatory duty to make reasonable adjustments, the issue is limited to what it is reasonable for RBKC to have anticipated, for purposes of complying with the Second Requirement, by way of reasonable adjustments to address hypersensitivity to actual noise or actual smell arising from a psychosis. It can only be reasonable for RBKC to have anticipated this issue and taken appropriate steps in advance to avoid it if there is a sufficient class of such persons such that it would be apparent to a reasonable landlord that such steps should be taken.

FG had not advanced sufficient evidence as to the prevalence of hypersensitivity to noise and smell to give rise to an anticipatory duty.

Once on notice from FG (assuming Part 3 applied), then a duty to make reasonable adjustments would arise. But decanting FG to another property would not be a reasonable adjustment on either the noise or the small issue.

RBKC is entitled to conclude that it is not required to “decant” FG to avoid the substantial disadvantage caused to FG by the Noise Issue. First, there is the technical objection that RBKC is required by section 166A(14) of the Housing Act 1996 to allocate housing accommodation only in accordance with its housing allocation scheme. Secondly, there is no evidence that RBKC has in its housing stock an alternative property available where the Noise Issue would not arise, given that the Noise Issue arises at what is, objectively speaking, a normal level. Accordingly, RBKC would need to spend resources investigating whether it had within its stock an alternative property that was sufficiently soundproof to a level where the Noise Issue would not arise. RBKC is entitled to conclude that such an investigation, given its cost in terms of resources, with no guarantee of success, would not be a reasonable adjustment for it to be required to make.

On the evidence, RBKC had carried out investigations and works on the smell issue.

On the noise issue

It has considered the KP Acoustics Report. It has determined that the “Upgrade Strategy” set out in section 5 of the KP Acoustics Report is too costly and disruptive to implement, particularly as it would require structural work within and reduce the living space of Flat 5. It is entitled, in my view, to conclude for those reasons that it would not be reasonable to make the proposed adjustments. Similarly, it is entitled, for similar reasons, to conclude that the alternative proposals for works entirely within Flat 7 that are set out in the supplemental response dated 20 December 2023 prepared by KP Acoustics Ltd would not be reasonable adjustments.

There was therefore no failure to make reasonable adjustments, even if Part 3 applied, rather than Part 4.

Claim dismissed.