Michael Pieretti v London Borough of Enfield: Disability and Homelessness

Thursday 14 October 2010

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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]:

“Having set out the dictum, he said "in my judgment that is the situation that has arisen here", by which he clearly meant that the reviewing officer had not been invited to consider any disability on the part of the appellant nor had it been obvious that she should consider it. He proceeded to suggest that the claim to disability by the appellant and his wife in the Homelessness Application Form, made more than a year prior to the review, was not an invitation to consider disability. And, far from its being obvious that the reviewing officer should consider disability, the judge made a positive finding that the appellant was not disabled within the meaning of s.1(1) of the Act of 1995.

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]:

“…For disability to play its rightful part in determinations made by public authorities (including under those areas of Part VII to which Mr Rutledge refers) there must (so Parliament clearly considered when enacting s.49A(1)) be a culture of greater awareness of the existence and legal consequences of disability, including of the fact that a disabled person may not be adept at proclaiming his disability….”

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:

“36…Taken together, these features of the evidence raised a real possibility that the appellant's acts and omissions in relation to the payment of rent were affected by mental impairment relevant to whether they were "in good faith" within the meaning of s.191(2) of the Act of 1996 or, for some other reason, not "deliberate" within the meaning of s.191(1)… But in the circumstances the law required the reviewing officer (and, for that matter, the initial decision-maker) to take steps to take account of the appellant's disability, i.e. to make further inquiries into whether it existed and if so whether it was relevant to the decision under s.191. Those further inquiries she never made.

The Court also qualified the dictum of Brooke LJ in Cramp (see above) so that:

“32.…In circumstances in which a reviewing officer under s.202 (or indeed the initial decision-maker under s.184) is not invited to consider an alleged disability, it would be wrong, in the light of s,49A(1), to say that he should consider disability only if it is obvious. On the contrary. He needs to have due regard to the need for him to take steps to take account of it.

“35… the reviewing officer was in breach of her duty under s.49(A)(1)(d) if she failed to take due steps to take account of a disability on the part of the appellant. In the context of her duty of review under s.202 of the Act of 1996 I would refine the question as follows: did she fail to make further inquiry in relation to some such feature of the evidence presented to her as raised a real possibility that the appellant was disabled in a sense relevant to whether he acted "deliberately" within the meaning of subsection (1) of s.191 of the Act of 1996 and, in particular, to whether he acted "in good faith" within the meaning of subsection (2) thereof?

(emphasis supplied)

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