Tag Archives: Equality Act 2010

Adesotu v Lewisham London Borough Council (2019) EWCA Civ 1405

Summary

In general terms, it is unlawful for a person who is exercising a public function to discriminate against another person by reason of his disability (Pt.3, Equality Act 2010). Claims for damages for such discrimination must be brought in the county court (ss.113, 114). That provision does not, however, prevent a person from raising such matters in a “claim for judicial review” (s.113(3); Encyclopedia, para.2-3691). A statutory review on judicial review principles is not a “claim for judicial review”: Hamnett  v Essex CC [2017] EWCA Civ 6; [2017] 1 W.L.R. 1155 (review of a traffic regulation order).Where a person applies to a local housing authority under Part 7, Housing Act 1996 and the authority are satisfied that he is homeless, eligible for assistance, has a priority need and has not become homeless intentionally then, unless the authority refer the application to another housing authority, they must secure that accommodation is available for occupation by the applicant (s.193(2), Housing Act 1996).

An authority cease to be subject to such a duty, inter alia, if, having informed the applicant of the possible consequences of refusal and of his right to request a review of the suitability of the accommodation, he refuses an offer which they are satisfied is suitable for him and they notify him that they regard the duty as discharged (s.193(5)).

The applicant has the right to request a review of any decision of a local housing authority as to what duty, if any, is owed to him under Part 7, including under s.193 (s.202). If the applicant is dissatisfied with the decision on review he may appeal to the county court on a point of law (s.204(1) Encyclopedia, para.1-3645). "Point of law" includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review (Begum (Nipa) v. Tower Hamlets LBC [2000] 1 W.L.R. 306; (1999) 32 H.L.R. 445; Runa Begum  v Tower Hamlets LBC [2003] UKHL 5; [2003] H.L.R. 32); it therefore does not confer on the court a fact-finding jurisdiction of its own: Bubb v Wandsworth LBC [2011] EWCA Civ 1285; [2012] H.L.R. 13). In R (CN) v Lewisham LBC; R (ZH) v Newham LBC [2014] UKSC 62; [2015] H.L.R. 6, it was held that, in order to comply with Art.8, ECHR, it was necessary for s.204 to be  interpreted as empowering the county court to assess the proportionality of a proposed eviction from temporary accommodation following an adverse decision by the local authority and to resolve any relevant dispute of fact in the appeal.

In 2017, Ms Adesotu applied to Lewisham LBC for homelessness assistance. The authority concluded that she was owed the s.193(2) duty and offered her temporary accommodation pending a further offer. She did not immediately respond to that offer and, after five days, the authority notified her that they considered the offer to have been refused and that the s.193(2) duty had therefore come to an end. On review, the authority concluded that adequate time had been given for her to make up her mind and upheld the original decision.

Ms Adesotu appealed to the county court contending, inter alia, that she suffered from mental illness and that treating her as having rejected the offer amounted to disability discrimination; she should have been given more time to consider her position. The authority applied to strike out the appeal, arguing, inter alia: that allegations of unlawful discrimination could only be brought by way of a free-standing claim (ss 113, 114, Equality Act 2010) and not as part of a s.204 appeal and that the grounds of appeal raised matters which would need the county court to make findings of fact and hear oral evidence, something which was not permissible in a s.204 appeal (Bubb). The Circuit Judge accepted those submissions and struck the appeal out.

Ms Adesotu appealed to the Court of Appeal. She contended that a s.204 appeal was akin to a judicial review so that these issues could be raised in the appeal (s.113(3), 2010 Act). The Equality and Human Rights Commission intervened, arguing that, in light of R (CN) v Lewisham LBC; R (ZH) v  Newham LBC, it was possible for the county court to hear disputed factual arguments as part of a s.204 appeal.

The appeal was dismissed. Equality Act 2010 claims generally had to be brought by way of free- standing proceedings in the county court, with proper provision for disclosure, evidence and, if necessary, the appointment of an assessor. The exception for judicial review claims did not extend to a statutory review. The decision in R (CN) v Lewisham LBC; R (ZH) v Newham LBC had not referred to Bubb and could not be said to have overruled Bubb, which accordingly remained good law. R (CN)  v Lewisham LBC; R (ZH) v Newham LBC should not be extended to cover other possible factual

(This summary is from Inside Housing Bulletin 19 August 2019

Law Reports

Bailii

Articles About The Case

Nearly Legal 

Capsticks Update - September 2019

Midland Heart Limited v Margaret Burns and CA (a protected party by his litigation friend, the Official Solicitor (OS))

Summary

In this case the landlord already had a Suspended Possession Order due to rent arrears. They sought to enforce it based on allegations of anti social behaviour on the part of the tenant's disabled son.

The court held that fresh proceedings would have to be issued to rely upon the anti social behaviour

The court also allowed the son to be joined as a party to the proceedings even though he was not a tenant.

Law Reports

This case does not appear to have been reported. Please let m know if you have a copy or a transcript or a link to one.

Articles About The Case

The only article I have bene able to find is this from the Community Law Partnership

Rent Arrears and Anti-Social Behaviour

Is The Public Sector Equality Duty A Paper Tiger When It Comes To Housing Law?

The simple answer to this question based on recent case law seems to be - Yes when it comes to possession proceedings but No when it comes to Homeless Appeals.

A paper tiger is something which appears to be strong but does not really have any power. The term was famously used by Mao Tse-Tung to describe American foreign policy in 1956. 

The Public Sector Equality Duty is set out at Section 149 of the the Equality Act 2010.  The Gov.UK Website page Equality Act 2010 Guidance states that it means that public bodies have to consider all individuals when carrying out their day-to-day work – in shaping policy, in delivering services and in relation to their own employees. It also requires that public bodies have due regard to the need to:

  • eliminate discrimination
  • advance equality of opportunity
  • foster good relations between different people when carrying out their activities

It would seem therefore that where it can shown that a tenant is suffering from a disability which might give rise to their public sector landlord taking possession against them the tenant might have a defence to the claim in that the landlord can hardly be eliminating discrimination if they are evicting someone in circumstances which amount to discrimination. Recent cases show that this is not however likely to be case.

The first weakness of the duty is that it is not a duty to take any action or desist from other actions. It is only a duty to have regard to the above matters. Thus the duty can be discharged if the landlord can show that they have had due regard to the duty but have gone on to take possession action anyway.

The second weakness is that even if the landlord cannot demonstrate that they had due to regard to the disability of the tenant before issuing possession proceedings or even later they can resolve this problem by having regard later on. This was what was held in the case of Powell v Dacorum (2019)

The third weakness is that a breach of the duty will not give rise to a defence if the landlord can show that even if they'd had due to regard to the disability of the tenant it would not have made any difference and that they would still have taken possession action anyway. This was what was held in the case of Steven Forward v Aldwyck Housing Group LTD (2019)

The approach taken in Powell and Forward was endorsed by the High Court on hearing the appeal in London and Quadrant Housing Trust v Patrick (2019)

Following these three cases there seems little prospect of success for a defence based on the Public Sector Equality Duty provided the landlord can demonstrate by the time of the trial that due regard has been had to the duty.

The ease with which the Public Sector Equality Duty can be discharged by landlords does make it appear to be a paper tiger when it comes to possession proceedings. It should however not be dismissed so quickly in other areas of housing law such as homelessness reviews and appeals. Local authorities were found to have made errors of law in failing to discharge the duty when dealing with disabled applicants in the cases of Lomax v Gosport (2018) and Kannan v Newham (2019).

The lack of bite for the Public Sector Equality Duty in possession should not actually be seen as as major problem for tenants. This is because the the Equality Act 2010 provides tenants with another more powerful weapon in the form of Section 15 of the Act which provides that a person discriminates against another if they treat them unfavourably as a result of something arising in consequence of their disability. This means that where a tenant is able to show that they have a disability which has given rise to possession action they will have a good prospect of being able to persuade a Judge that they have a good defence to the claim because it is based on unlawful discrimination. The landlord will then only be able to evict them if they can show that the discrimination is justified as a proportionate means of achieving a legitimate aim.

I hope to deal with Section 15 and when discrimination will be lawful another day but for now I will point out that the availability of Section 15 as a protection for disabled tenants means that it will generally only be in pretty much hopeless cases that the tenant has to rely on Section 149 and the Public Sector Equality Duty because they are unable to rely on Section 15. In order for the landlord to have persuaded the Court that the discrimination was lawful for the purposes of Section 15 they will have had to carry out an assessment which should meet the requirements of Section 149 and be able to show that they have had due regard. Where a Judge has held that discrimination is permissable for the purposes of Section 15 it is hard to see a Judge going on to find that the landlord has not had due regard to the issues set out in Section 149.

Section 15 does not arise as easily in homelessness cases where the council is not taking action against the applicant but has reached a decision based on consideration of their circumstances. The issues to be considered in Section 149 will therefore be of much greater importance.