Barnsley Metropolitan Borough Council (Claimant Respondent) v Darren Norton and Others (Defendants Appellants)

Hearing date: 25 May 2011

This appeal is brought against an order for possession dated 17 ^th December 2010, made by His Honour Judge Swanson in the Barnsley County Court. The Defendant, now Appellants, are Mr Darren Norton, his wife Mrs Louise Norton and their daughter Miss Samantha Norton, who we were told is known as Sam, and to whom I will refer by that name. Mr Norton was employed by Barnsley Metropolitan Borough Council (the Council) as the caretaker at a Primary School in Carlton in Barnsley. He had a tenancy of the caretaker's house which he was required to occupy for the purposes of his employment. He lived there with his wife and daughter. The employment started in 1992 and came to an end in November 2009 on the grounds of his misconduct. The Council then sought possession of the house in order that they could accommodate a new caretaker. In the county court there was an issue as to whether he was entitled to security of tenure but that was decided against him and is not challenged on the appeal. There is no issue, at this stage, that the Council is entitled to possession of the house. The appeal does not put forward any private or property law defence to the claim. Rather it amounts to a public law challenge to the decision to bring and continue the proceedings.

There are two grounds of appeal, for which permission was given by Rimer LJ. The first is that the Council was in breach of its duty under section 49A of the Disability Discrimination Act 1995 (the DDA). The second is that to make an order for possession was disproportionate having regard to Article 8 of the European Convention on Human Rights and to the Human Rights Act 1998.

The disability issue arises because Sam was born with cerebral palsy in 1991 and she developed epilepsy as a baby. It is common ground that she suffers from a disability for the purposes of the DDA, though fortunately it seems that she is no longer seriously affected by epilepsy. Her mobility is restricted, as are her learning and cognitive abilities. She receives the highest rate for the care and the mobility components of disability living allowance. The premises are safe for her. When she was very young they were specifically adapted for her in some respects by the Council's social services department, with rails and grab handles to enable her to manage steps and stairs for example. There was evidence that she has no sense of danger and needs to be accompanied at all times. At the time of the hearing she was pregnant, with the birth expected in March this year. That birth happened in due course so the household now includes a small baby. (We have been told that, very recently, she and the baby's father have married.) Sam lives and intends to continue to live with her parents together with her child. There was no evidence before the county court of any recent assessment of Sam's needs as regards accommodation. It was said that she could cope safely with stairs.

Section 49A of the DDA imposed a duty, relevantly, as follows:

"(1) 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."

As of 5 April 2011 the same duty has been imposed instead by section 149 of the Equality Act 2010: see subsections (1)(b), (3)(b), (4) and (7).

In Pieretti v. Enfield Borough Council[2010] EWCA Civ 1104, [2011] HLR 3, the Court of Appeal rejected an argument that section 49A only imposed a generalised duty as regards the formulation of policy rather than a duty to be implemented in relation to action taken or to be taken by a public authority in particular cases. In that case the point arose because a housing authority's reviewing officer had failed to take account of the disability of applicants for assistance under Part 7 of the Housing Act 1996 (Part 7). There was material from which it could and should have occurred to the officer that the applicants were disabled and that this was relevant, on the particular facts, to the question of whether they were to be regarded as having become homeless intentionally.

Here the point arises more starkly because there is no doubt that the Council well knew that Sam was disabled, and seriously so. At the time when Mr Norton's employment had been terminated but before he received a notice to quit he and his wife went to see Ms Jill Barton, a housing adviser employed by the Council. She became aware from this, if she did not already know, that Sam was disabled and that she received the highest rates of disability living allowance, and had severe learning disabilities. Later she was informed that the legal department had decided to take possession proceedings but there is no suggestion in the papers that she was in any way involved in the taking of that decision.

The judge said there was no evidence either way as to whether the individual or individuals making the decision to seek possession positively considered Sam's disability. From that I take it that the Council did not seek to show that any specific regard had been had to her position under section 49A at the time that the decision to start proceedings was considered and taken. Accordingly the court must proceed on the footing, as the judge did, that the Council did not, in this case, have any regard to the need to take steps to take account of Sam's disability at that stage.

The judge held that this was of no consequence because, whatever consideration had been given to that factor, the decision must have been to the same effect, namely to seek possession.

Clearly there can be situations to which one or other of the six paragraphs of section 49A(1) may be relevant where it can properly be said that, although no regard was had to the particular factor, it could have made no difference. A point under section 49A on very different facts from the present was raised and dealt with in somewhat that way in London Borough of Brent v. Corcoran[2010] EWCA Civ 774.

The judge went on to explain his conclusion in the present case at paragraph 19 of his judgment as follows, after having referred to the decision in Pieretti:

"These proceedings are not brought under Part 7 but assuming its general applicability, I note that in his judgment Lord Justice Wilson said at para. 33:—

"But the law does not require that in every case decision makers…must take active steps to inquire into whether the person to be subject to the decision is disabled and if so, is disabled in a way relevant to the decision. That would be absurd."

The duty must be relevant to the decision to be made and the level of relevance itself will vary. In this case the local authority felt a pressing need to free the School House so that a new caretaker could take up his duties. Samantha's disability at this point was less relevant than it would be when considering an application for housing under the homelessness provisions. I do not consider that the action of the local authority was illegal."

The Council, in a respondent's notice, makes a more fundamental submission, namely that in taking the decision whether or not, and if so when and how, to bring proceedings for possession, the Council was not subject to the duty under section 49A(1)(d) at all. That argument is based on what Lord Justice Wilson said in paragraph 31 of Pieretti:

"I therefore have no hesitation in concluding that the duty in section 49A(1) of the Act of 1995 applies to local authorities in carrying out their functions – all of their functions – under Part 7 of the Act of 1996. Although others of the five aspects of the duty set out in the subsection could be relevant to the exercise of those functions (Ms Monaghan, for example, refers in this regard to the aspect specified at (a), namely the need to eliminate such discrimination as is unlawful under the Act), I am clear that the substantial effect of my conclusion is in relation to the aspect specified at (d), namely that, in making determinations under Part 7 in the areas in which a person's disability could be of relevance, a local authority shall "have due regard to…the need to take steps to take account of disabled persons' disabilities". As indicated in [27] above, Mr Rutledge himself identifies three such areas in particular: the priority of need, the intentionality of homelessness and the suitability of accommodation."

For the Council, Mr Fullwood argued that Sam's disability could not be of any relevance to the decision whether or not to seek possession of property in a case where the Council had, as it contended, an absolute right to possession and a sound need to obtain the possession, and where, if and when a possession order were made, the position of Sam and her parents would be within the scope of Part 7.

Mr Fullwood pointed out that, in deciding that the duty under section 49A applied to all aspects of a public authority's...