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

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