Michael Pieretti v London Borough of Enfield [2010] EWCA Civ 1104, CA (12 October 2010) (Wilson, Mummery, Longmore LJJ)
The application of the public sector equality duty in respect of disabled persons to the powers and duties of local authorities in respect of homeless persons
– a local authority’s obligation to make further inquiries where a feature of the evidence raises a real possibility that the applicant is disabled where that is relevant to the performance of its functions
This appeal concerned the extraordinary attempt by the London Borough of Enfield to argue that the public sector equality duty in respect of disabled persons under s 49A of the Disability Discrimination Act 1995 did not apply or applied only to a limited extent to the discharge of duties and the exercise of powers by local housing authorities under homelessness provisions in Part VII of the Housing Act 1996 (‘the 1996 Act’).
The local authority found (in a decision of 2 June 2009) that the Appellant had become homeless intentionally under s 191 of the 1996 Act so that only a limited duty (under s 190(2)) rather than a full duty (under s 193) was owed to him. The Appellant was unsuccessful in his statutory appeal to a county court against this decision and it was from the judgment of the county court that the matter came before the Court of Appeal, which allowed his appeal.
Section 49A(1)(d) of the Disability Discrimination Act 1995 provides that:
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;
Section 191 of the Housing Act 1996 provides:
(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate.
(emphasis supplied)
Background facts
The Appellant and his wife had had a possession order obtained against them by their landlady simply on the basis that their assured shorthold tenancy had come to an end and notice had been given to them under s 21(1)(b) of the Housing Act 1988. However, the landlady’s avowed motivation for seeking possession was non-payment or delayed payment of rent. The question was whether the acts omissions of the Appellant were deliberate so that the local authority could hold that he had become homeless intentionally under s 191 of the 1996 Act with the result that a full homelessness duty under s 193 would not be owed to him. There was a complicated history in respect of payment of rent but it is clear that any arrears of rent had been cleared by the Appellant prior to eviction.
In completing a ‘Homelessness Enquiry Form’ the Appellant had asserted that there was mental illness and physical disability present in his household, noting his depression and his wife’s physical health problems but indicating that he (although it is not clear whether he was also referring to his wife) did not have a disability within the meaning of s 1 of the Disability Discrimination Act 1995. In a later ‘Homelessness Application Form’ the Appellant appeared to indicate that both he and his wife did have a disability. Further information as to their health was subsequently provided by their GP, noting the Appellant’s depression and his wife’s chronic depression and severe physical health problems.
In the county court
In the county court appeal Enfield argued (i) that s 49A(1) of the Disability Discrimination Act 1995 did not apply to a local housing authority’s duties of inquiry and review under ss 184 and 202 of the 1996 Act and (ii) that no material had been placed before it to trigger any duty to investigate whether the Appellant had been suffering disability in any relevant respect. Regarding the latter, in Cramp v Hastings BC [2005] EWCA Civ 1005, Brooke LJ stated at [14]:
“Given the full-scale nature of the review [under s.202], a court whose powers are limited to considering points of law should now be even more hesitant than the High Court was encouraged to be at the time of R v. R.B. Kensington & Chelsea ex p Bayani (1990) 22 HLR 406 if the appellant's ground of appeal relates to a matter which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered."
In the county court appeal in the instant case Cramp was applied by the Judge hearing the appeal in the way set out in the following extract from the Court of Appeal judgment at [22]:
In the Court of Appeal
Enfield made three ‘bold’ submissions all of which were rejected as ‘clearly wrong’.
Enfield argued that the duty under s 49A(1) of the Disability Discrimination Act 1995 did not apply to Enfield’s determination as to whether or not the homelessness of the Appellant and his wife was intentional
First, Enfield submitted that s 49(1) only applied to the general formulation of policy and not to the determination of individual cases. The Court of Appeal were robust in rejecting this at [26]:
"…‘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]….”
Second, Enfield submitted that Part VII of the 1996 Act addresses the rights and needs of the disabled so comprehensively that there is no room for the introduction into the scheme for making provision for the homeless of further protection for the disabled such as that found in s 49A(1) of the Disability Discrimination Act 1995. This extraordinary submission was rejected by the Court of Appeal, which stated at [28]:
Third, Enfield submitted that in its determinations under Part VII of the 1996 Act, a local authority does not carry out "functions" within the meaning of s 49A(1) of the Disability Discrimination Act 1995 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. This submission was also rejected at [30].
The conclusions of the Court of Appeal
The Court of Appeal concluded that the duty in s 49A(1) of the Disability Discrimination Act 1995 applies to local authorities in carrying out all of their functions under Part VII of the 1996 Act, see [31] and that:
“37...the ratio decidendi [is] that s.49A(1) so applies (or, to be pedantic, applies at any rate to the local authority's functions of inquiry under s.184 and of review under s.202 of the Act of 1996)…”
Looking at the features of the case, the Court concluded:
The Court also qualified the dictum of Brooke LJ in Cramp (see above) so that:
(emphasis supplied)