Disability Discrimination Act 1995 – Respondent council obtaining possession order against first appellant in respect of house let to him for purposes of former employment as caretaker – Daughter of first appellant suffering from serious disability – Whether respondents failing to comply with duty under section 49A(1)(d) of 1995 Act in respect of disabled person – Whether any such failure requiring possession order to be set aside – Appeal dismissed
Between 1992 and 2009, the respondent council employed the first appellant as a school caretaker. In that connection, they granted to him 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 second and third appellants. The daughter had been born with cerebral palsy and developed epilepsy as a baby, and continued to suffer from restricted mobility and severe learning disabilities. She received the highest rates of disability living allowance and the respondents had adapted the house for her benefit. In 2009, the first appellant’s employment was terminated on the ground of gross misconduct and the respondents sought possession of the house in order to accommodate a new caretaker.
In county court possession proceedings, the respondents established that the first appellant had no entitlement to security of tenure or any private law defence to the possession claim. However, the appellants challenged the respondents’ decision to bring and continue the possession proceedings under public law grounds that, inter alia, the respondents were in breach of their duty, under section 49A(1)(d) of the Disability Discrimination Act 1995, to pay due regard to the need to take account of the third appellant’s disability.
The judge proceeded on the footing that that matter had been ignored but held that this was of no consequence because the decision to seek possession would have been the same whatever consideration had been given to that factor. He granted a possession order accordingly. The appellants appealed.
The respondents contended that they were not subject to the duty under section 49A(1)(d) when deciding whether to seek possession of property in a case where they had an absolute right to possession and a sound need to obtain it. They submitted that the need to see that the third appellant was properly accommodated once possession was obtained would be satisfactorily dealt with pursuant to their functions under Part 7 of the Housing Act 1996.
Held: The appeal was dismissed.
(1) The duty under section 49A of the 1995 Act was not to be considered only when a public authority was exercising functions that bore on the rights of a disabled person under other specific legislation, such as the Part 7 of the 1996 Act. The section was entirely general in its wording and applied more widely, to the carrying out of any function of any public authority: Pieretti v Enfield Borough Council [2010] EWCA Civ 1104; [2011] HLR 3 considered. It did not necessarily follow that whenever a public authority was considering or exercising any function, whatever it might be and in whatever circumstances, it had to give thought to how it might affect a disabled person. There could be situations to which one of the paragraphs of section 49A(1) might be relevant where it could properly be said that, although no regard was had to the particular factor, it could have made no difference: Brent London Borough Council v Corcoran [2010] EWCA Civ 774; [2010] HLR 43 considered. In the instant case, however, it would have been obvious to any person considering whether to start possession proceedings that the making of a possession order might substantially affect the third appellant’s way of life and wellbeing. The decision to seek possession of the school house was an exercise of a function of the public authority. In the circumstances, the respondents had been under a duty to take take account of her disability, pursuant to section 49A(1)(d). They had not been entitled to disregard the implications of possession proceedings for an occupant known to be severely disabled on the ground that if a possession order were made, the disability would be addressed if and when the occupants applied for assistance under Part 7. The respondents were in breach by failing to address the section 49A(1)(d) duty before commencing the possession proceedings, or at any stage during the proceedings.
(2) That finding did not mean that the possession order should be set aside. Even though the respondents had breached their duty before the proceedings were started, the could remedy that breach by giving proper consideration to the question later. They could do so now in the light of the court’s decision. The respondents needed to give proper consideration to the factors that were relevant under section 49A(1)(d) of the 1995 Act, above all to the need for suitable accommodation to be found for the third appellant. They were under a duty to take those factors into account in deciding whether, and if so when, the possession order was to be enforced. In practical terms, the respondents would have to offer reasonably such accommodation to the family, who would have to accept that they had to move when suitable alternative accommodation was made available. Had the respondents’ failure to comply with its section 49A(1)(d) duties been challenged by an application for judicial review rather than by way of a defence to the possession claim, the court could have concluded that, despite a proven past breach, the respondents’ decisions should not be set aside if they could now be relied on to exercise their relevant future functions properly. By analogy, the court in the instant case was entitled to take the view that, if the decision would not have been set aside on an application for judicial review, it should not provide a basis for a defence to the proceedings for possession. It was appropriate to make an order for possession and to leave it to the respondents to deal with the logically consequent issue of the third appellant’s need for new accommodation.
Simon Read (instructed by Shelter South Yorkshire, of Sheffield) appeared for the appellants; Adam Fullwood (instructed by the legal department of Barnsley Metropolitan Borough Council) appeared for the respondents.
Sally Dobson, barrister
