Kabal Singh Lalli v Spirita Housing Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lady Justice Black,Lord Justice Ward |
| Judgment Date | 24 April 2012 |
| Neutral Citation | [2012] EWCA Civ 497 |
| Date | 24 April 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2011/1972/CCRTF |
[2012] EWCA Civ 497
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
His Honour Judge Barrie
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Elias
and
Lady Justice Black
Case No: B2/2011/1972/CCRTF
No: 9DE01527
Mr David Stephenson (instructed by Derbyshire Housing Aid) for the Appellant
Mr Neil Wylie (instructed by Messrs Martin Lee & Co) for the Respondent
Hearing date : 21 March 2012
This is an appeal against the decision of His Honour Judge Barrie, sitting in the Nottingham County Court, when he dismissed a raft of complaints that the defendant, a registered sheltered housing association, had acted unlawfully in various ways under the Race Relations Act 1975 and the Disability Discrimination Act 1995 ("the 1995 Act"). Only some of his conclusions are the subject of challenge in this appeal.
The background is as follows. The appellant, Mr Lalli (whom I shall call Mr Singh since that is how he prefers to be known), is an assured tenant who resides at Dover Court in Derby, which is sheltered accommodation. There are 38 residents who must be either over 60 years of age or in receipt of disability living allowance in order to live there. They have the assistance of a warden.
The appellant is 57 and of Indian origin. His first language is Punjabi. He suffered a brain injury following an assault in 1996. He now has short term memory and learning difficulties. It is common ground that he has a mental impairment which constitutes a disability within the meaning of section 1 of the Disability Discrimination Act. Hence the reason why he is living in this accommodation. He has been at Dover Court since March 2001.
Early in his tenancy there was some friction between him and other tenants and in October 2002 an investigation concluded that he had been subject to some racially abusive comments. He had in turn admitted to making various threatening comments to some other residents. Thereafter there was evidence from the warden that the appellant had caused some distress to other residents, particularly when he was affected by alcohol.
The incident which triggered the events giving rise to these claims occurred on 5 March 2009. The appellant is alleged to have made offensive comments and threatened certain residents who were at the time in the communal lounge. He denied this and alleged that he had been told by these fellow residents that they did not want black people there, or words to that effect. A report was made of the incident by the warden who sided with the other residents. He noted that it had become apparent over the weeks that Mr Singh had been attending social nights when drunk, that his alcoholic state caused people to ignore him and this, in turn, prompted him to become angry and abusive and to call everyone racist.
The incident of 5 March itself was more serious than on earlier occasions because the abuse was particularly offensive. The warden suggested in his report that the appellant should be kept away from the community room for the present until the incident had been fully investigated by management. This led to a letter dated 9 March from Ms Gordon, who is described as the respondent's Supported Housing Officer, in which she arranged to meet the appellant on Friday 13 March, and in the meantime she asked him to refrain from entering the communal lounge when social events were happening until a full investigation had been undertaken.
There was a further incident on 10 March in the communal lounge. The appellant contended, although this is disputed, that he went there to ask someone to read the letter to him as he could not understand what it said because he was unable to read English. This explanation for his presence was apparently disputed by those present, who said that it was plain that he already knew what was in the letter and had again used threatening language.
The meeting with Ms Gordon took place on 13 March when the two incidents were discussed. The judge was critical of the respondent for not having a note of the meeting, but he accepted that Mr Singh was unable to provide a satisfactory explanation to head off injunction proceedings. The judge was satisfied that the decision to seek the injunction had not been lightly taken.
On 18 March the respondents obtained an interim anti-social behaviour injunction forbidding Mr Singh from harassing, threatening or abusing fellow residents at Dover Court and excluding him from the communal lounge between the hours of 4pm to 9pm.. He was served with court papers on 20 March and Ms Gordon met him again on that day to explain the injunction. The judge found that Ms Gordon herself was not aware of his cognitive impairment or his reading problems. However, he also found that Mr Singh had a good comprehension of spoken English and understood what was said to him at both those meetings.
Shortly after being served with the injunction papers, Mr Singh approached the Derby Racial Equality Council for assistance. Thereafter there were a number of court hearings when the injunction was renewed, namely on 5 May, 26 June, 6 August, 28 September and 9 November. Mr Singh was represented for the first time on 6 August when the hearing was adjourned and he was given permission to provide expert evidence. The purpose was to identify the nature and extent of his disability including whether he had the capacity to understand the legal proceedings, and in particular, the full implications of the injunction.
The medical evidence consisted of a report from Mr Nigel Schofield, a neuro-psychologist and chartered clinical psychologist. He noted that the appellant's GP had long described Mr Singh as having had learning difficulties and being functionally illiterate since the head injury more than ten years earlier. He noted that "the literacy issue is an unusual one following a traumatic brain injury but I am unable to confirm or refute Mr Singh's description of its onset based on psychometric assessment now". He also noted that an additional factor here was lengthy use of alcohol which may have prolonged or exacerbated such cognitive problems as may have initially been caused by brain injury and which may otherwise have partly or fully remitted. He concluded as follows:
"5.2 Most importantly, current psychometric assessment has confirmed that Mr Singh's cognitive abilities are in the impaired range overall, with generalised cognitive impairment or difficulty across all cognitive domains. As such, this would need to be taken into account by anyone dealing with him particularly in legal or financial matters, as not only may he have difficulty understanding verbal information (most especially if it is written in English), but would then additionally have difficulty in taking appropriate action, or remembering that he needed to do so, without external assistance or facilitation. I do believe that he thus qualifies as a disabled person in terms of the Disability Discrimination Act 2005 as he has demonstrable 'permanent mental impairment.
5.3 Whilst Mr Singh seems able to understand the nature of the allegations against him (which he disputes), and that he has had an injunction against him, any breaching of which would lead to further legal action against him, I am uncertain that he does so at a sufficiently detailed level for him to participate in the legal proceedings for which this report was sought, without third party assistance and support over and above his legal team. It would also be extremely difficult for him to cope with examination or cross-examination in a court situation."
And then in response to specific questions, he said this:
"6.1 Mr Singh appears to be suffering from generalised mental impairment of neurological origin, possibly partially as a result of brain injury, but significantly also related to prolonged alcohol abuse, which now may be the major underpinning variable for most of his deficits.
6.2 These problems include difficulty in learning and retaining information, difficulties managing his everyday affairs, and problems with reading and writing. These latter are such that he is functionally illiterate. He also details an array of physical problems related to defined physical conditions as detailed in 3.4 above that impact upon his ability to do physically demanding domestic tasks. I am not medically qualified to comment further upon these physical symptoms."
Following this report the Official Solicitor took over responsibility for the proceedings. Subsequently, after understanding the full nature of his disability, the respondents dropped the injunction proceedings.
By a claim form dated 17 September 2009, which was in fact a month before the medical report had been received, the appellant contended that he had been discriminated against by the respondent on a number of grounds. It was alleged that they had issued and/or pursued the injunctive proceedings in a manner which contravened certain provisions of the Race Relations Act and the 1995 Act; that they had failed to investigate his complaints of race discrimination, contrary to certain provisions of the Race Relations Act; that they had not addressed certain harassment allegations to which he said he had been subjected; that they had not warned him that they would pursue the injunction proceedings; and that they had not followed their own procedures for dealing with anti-social behaviour.
The specific claims made under the 1995 Act were directed solely at the injunction...
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