In the light of the PSED under Section 149 of the Equality Act 2010, what is the extent of the duty of a local housing authority under Section 184 of the Housing Act 1996 to inquire into whether the children of a mother applying for homelessness assistance may have a disability as defined by Section 6 of the 2010 Act requiring special arrangements to be made? That is the question considered by the Court of Appeal in Birmingham City Council v Wilson [2016] EWCA Civ 1137. There was a good deal of common ground between the parties on the legal issues which the Court approved and applied:-

(1)       The relevant duty of inquiry, to which the City Council was subject, whether under Section 184 of the 1996 Act, or under general principles of public law, is an obligation to take reasonable steps to inform itself of matters relevant to the carrying out of its tasks of assessing the application under Section 193 of the 1996 Act, and of doing so in a manner compatible with its PSED under Section 149 of the 2010 Act;

(2)       As to the scope of the duty of inquiry under general public law, it is for the decision-maker and not the Court, subject to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such;

(3)       Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely;

(4)       A Court should be hesitant to intervene upon review in a housing appeal if the appellant’s ground of appeal relates to a matter which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered;

(5)       The impact of the PSED now contained in Section 149 of the 2010 Act is to introduce a culture of greater awareness of the existence and legal consequences of disability;

(6)       In circumstances in which a decision-maker under Section184 of the 1996 Act (or a reviewing officer under Section 202) is not invited to consider an alleged disability, it would be wrong to say that he or she should consider disability only if it is obvious;

(7)       On the contrary, he or she needs to have due regard to the need to take steps to take account of it;

(8)       The relevant question has, in the light of the PSED, become whether there has been a failure to make inquiry in relation to some feature of the evidence presented as “raised a real possibility” of disability in a relevant sense; and

(9)       The question whether the evidence presented raises a “real possibility” that any applicant for housing assistance is disabled is to be assessed by looking to see whether the Council officer subjectively considers that such a “real possibility” arises or acts in a Wednesbury irrational way in concluding that it does not.

In R (RLT Built Environment Ltd) v Cornwall Council (2016 EWHC 2817 (Admin) Hickinbottom J dismissed a challenge to the decision of the Council as LPA to hold a Local Referendum on the making of the St Ives Neighbourhood Development Plan.  The Claimant contended that the Plan includes Policies on future housing provision, including in particular residency requirements intended to limit second home ownership in the St Ives area, which are incompatible with ECHR Article 8 (and also EU law on Strategic Environmental Assessments).  The Judge, at paragraphs 81-83, set out the following propositions with respect to the relationship between the domestic planning scheme and ECHR Article 8 and in particular planning control, eg decisions in respect of planning permission or enforcement:-

1. Article 8 does not give a right to a home, or to have a home in a particular place;
2. However, where someone has a home in a particular dwelling, it may interfere with the Article 8 rights of him and/or his family to require him/them to move;
3. Whilst those rights demand “respect”, they are of course not guaranteed: in this context, as much as any other, the public interest and/or the rights and interests of others may justify interference with an individual’s Article 8 rights;
4. Where Article 8 rights are in play in a planning control context, they are a material consideration; and any interference in such rights caused by the planning control decision has to be balanced with and against all other material considerations, the issue of justification for interference with Article 8 rights effectively being dealt with by way of such a fair balance analysis;
5. That balancing exercise is one of planning judgment;
6. Consequently, it may be amenable to more than one, perfectly lawful, result;
7. The Court will interfere only if the decision is outside the legitimate range;
8. Indeed, in any challenge, the Court will give deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant area;
9. Such a decision-maker will be accorded a substantial margin of discretion;
10. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity (such as an Inspector);
11. If the decision-maker has clearly engaged with the Article 8 rights in play, and considered them with care, it is unlikely that the Court will interfere with his conclusion;
12. Article 8 rights are, of course, important: but it is not to be assumed that, in an area of social policy such as planning, they will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals;
13. In practice, cases in which the Court will interfere are likely to be few;
14. These propositions apply equally to decisions made in respect of plans and programmes in the planning field;
15. Indeed, given that planning plans provide a framework for decision-making in individual cases – and, generally, human rights cannot be considered in a vacuum but only in the application of law and policy to an individual case; the margin of appreciation allowed to planning authorities in preparing such plans must be particularly broad.
16. Furthermore, in considering whether a statutory scheme (including policy) is compliant with Article 8, it is necessary to look at the scheme as a whole, including the checks and balances that are designed to protect – or have the effect of protecting – an individual from any potential breach of Article 8;
17. A regime is compliant with Article 8 if, as a whole, it is capable of protecting relevant Article 8 interests.

In R (Ghulam) v SSHD (2016) EWHC 2639 (Admin) Flaux J held at paras 329/330 that (1) what is required is a realistic and proportionate approach to evidence of compliance with the PSED, not micro-management or a detailed forensic analysis by the Court, (2) the PSED, despite its importance, is concerned with process, not outcome, and the Court should interfere only in circumstances where the approach adopted by the relevant public authority is unreasonable or perverse, and (3) it is not for the Court to substitute its decision as to the weight to be given to equality considerations and the statutory criteria if satisfied that the decision maker has complied with its duty.

GPOC In R (GS) v Camden LBC (2016) EWHC 1762 (Admin) it was held that the authority was under a duty to exercise its general power of competence under Section 1 of the Localism Act 2011 so as to provide accommodation when there would otherwise be a breach of ECHR Article 3.

As is well known, Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, and Section 7(5) provides that proceedings in which a person claims that a public authority has acted in a way which is made unlawful by Section 6(1) must be brought before the end of (a) the period of one year “beginning with the date on which the act complained of took place” or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances.  By Section 6(6) “act” includes a failure to act.  In O’Connor v Bar Standards Board [2016] EWCA Civ 775 breach of Article 14 of the Convention in conjunction with Article 6 was alleged.  The claim was held to be barred by Section 7(5).  Lord Dyson MR observed:

“19.      … As a matter of ordinary language, the wording of section 7(5)(a) contemplates that an “act” is a single event which occurred on a single date. No express provision is made for an act which extends over a period of time. There is no difficulty in applying this approach in the paradigm case of a single act which takes place at a clearly identifiable point of time. The act should not be confused with its consequences. If it takes place more than one year before proceedings are brought, the claim is barred by section 7(5)(a) even if its consequences do not appear until later. There are also cases where the complaint is a failure to act. It may be difficult to determine when a failure to act occurs. This problem does not, however, arise in the present case.

20. There are also cases … where the question is whether the acts complained of are to be regarded as a single continuing act or as a series of discrete acts with continuing consequences. … it is not always easy to decide how to classify the acts in such a case. It will depend on the particular circumstances and the nature of the particular complaint.”

A decision to resist an appeal, and the implementation of that decision could not sensibly be seen as a continuation of the original decision to prosecute.

Elias LJ said:

“37.      …. On the appellant’s analysis, many acts which are plainly one-off would retrospectively be converted into continuing acts simply by virtue of being challenged. Take a case where a person claims a social welfare benefit, is refused, and challenges that decision by a process of internal appeal. The department can at all times revoke the decision and pay the benefit. The decision to refuse the benefit itself could not properly be described as a continuing act; it is manifestly a single act, albeit with potentially continuing adverse consequences. Yet on the appellant’s analysis it becomes a continuing act once it is challenged simply by virtue of the fact that the appeal is not conceded, with the consequence that time does not begin to run. I can envisage situations where the fact that there is an internal appeal may well be material to the question whether or not time should be extended, but it cannot in my view delay the commencement of the limitation period itself.”

Elias LJ indicated that the position might be different if what was alleged were continuing systemic discrimination.

R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) is a PSED challenge which succeeded. It arose out of a budget decision to cut funding to voluntary sector organisations who provide short breaks for disabled children.  The officer report to members stated that the PSED requires decision makers “to keep the welfare of service users and their families at the forefront of their mind, particularly the most disadvantaged” (“the formula”).  Elisabeth Laing J found that, despite the provision by officers to members of the necessary factual information, the Council failed to have “due regard” to the needs listed in Section 149 of the Equality Act 2010.  The problem was that, while members were given the text of Section 149, they were directed to the formula.  She said:

“45.    … That would have been fine if the formula accurately encapsulated, for the purposes of the decision about short breaks, the effect of section 149. However, first, the formula is not tailored to that decision, … Second, it does not accurately capture the effect of section 149 in the context of that decision.

46. As I have found, members had the factual material which would have enabled them to have due regard to the statutory needs. However, they were directed to look at that material in a way that did not help them to focus on the right question, but, instead, told them to focus on an irrelevant, or at best, only partly relevant, question. Had the report only included the text of section 149(1), it might not have made councillors’ lives easy, but I could have been satisfied that they had considered the right question. The flaw in the presentation of the material is that the repeated use of the formula to which I have referred, twice with the text of section 149(1), and twice on its own. That way of presenting the equality issues unavoidably suggests that the formula is equivalent to, or a substitute for, the statutory considerations, and it is not. It does not satisfy me that members asked themselves the right question when they looked at the material officers had so diligently assembled. …
47. … A paraphrase of the statutory test which includes some, but not all, relevant matters is not enough. Express reference to the statutory test (or an accurate paraphrase or summary, as the case may be) ensures a focus on all the factors which Parliament … has prescribed.

The Judge was critical of paragraph 60 of the judgement of McCombe LJ in R (Bracking) v SoS for Work and Pensions (2013) EWCA Civ 1345 insofar as it may have suggested that public authorities must give equal weight to equality considerations and to other “pressing circumstances”.  She said, at paragraph 41:

“41.    The practical question, or questions, posed by section 149 in relation to a particular decision will depend on the nature of the decision and on the circumstances in which it is made. It is clear from the authorities that the fundamental requirement imposed by section 149 is that a decision maker, having taking reasonable steps to inquire into the issues, must understand the impact, or likely impact, of the decision on those of the listed equality needs which are potentially affected by the decision. On appropriate facts, this may require no more than an understanding of the practical impact on the people with protected characteristics who are affected by the decision … Further, where an impact is obvious, as a matter of common sense, but its extent is inherently difficult to predict, there may be nothing wrong in making a reasonable judgment and then monitoring the outcome with a view to making any adjustments that may seem necessary: the section 149 duty is ongoing.”

In R (Skelmersdale Limited Partnership) v West Lancashire BC [2016] EWHC 109 (Admin) Jay J summarised the case law as follows: (1) AIPI guarantees in substance the right of property; (2) AIPI comprises three distinct rules; (3) The first, of a general nature, lays down the principle of “peaceful enjoyment of property”; (4) The second covers “deprivation of possessions” and subjects it to certain conditions; (5) The third recognizes that States are entitled, amongst other things, to control the “use of property” in accordance with the “general interest”; (6) The second and third rules, which are concerned with particular instances of interferences with the right to peaceful enjoyment of property are to be construed in the light of the general principle laid down in the first rule; (7) In a deprivation of possessions case, the infringement of the AIPI right will be justified only in “exceptional circumstances”, in the absence of payment of compensation; (8) In a control of use case, the broad question is whether a “fair balance” has been struck between (i) the private interests of the proprietor and (ii) the general public interest; (9) In the event that a fair balance has not been struck without reference to it, the presence or absence of compensation is a relevant factor; (10) The State is allowed a “wide margin of appreciation” in the field of land development and town planning; (11) The issue of “proportionality” is not hard-edged, but requires a broad judgment of where the fair balance lies; (12) The Court will intervene only if the interference is deemed to be “manifestly disproportionate”; and (12) When assessing proportionality under AIPI, a measure is not rendered disproportionate merely by reason of there being a “less intrusive way” of achieving the same objective.

James Goudie QC

As is well known, the relevant law on disability discrimination is now found in the Equality Act 2010, which replaced provisions formerly contained in the Disability Discrimination Act 1995. The Equality Act gives effect to the United Kingdom’s EU obligations under Directive 2000/78/EC (“the Equality Directive”). The principle of equal treatment prohibits discrimination on certain prescribed grounds, such as race, sex and sexual orientation, and these include disability. The structure of the Act is that it defines the meaning of discrimination and then identifies the circumstances when it is unlawful. There are four forms of disability discrimination: direct discrimination (Section 13), indirect discrimination (Section 19), discrimination arising from disability (formerly called disability-related discrimination) (Section 15), and a failure to make reasonable adjustments (Section 20). The direct and indirect discrimination principles apply to all the prescribed characteristics, but the reasonable adjustments duty and the duty not to commit discrimination arising out of disability are unique to disability cases. They are a recognition of the fact that the difficulties faced by disabled workers are very different from those experienced by people subjected to other forms of discrimination. These two duties unique to discrimination therefore secure more favourable treatment and are closely interrelated.

Section 20 of the Act, the duty to make reasonable adjustments, which requires affirmative action in certain situations, was relied upon in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265.  The effect of Section 21 is that a failure to comply with the Section 20 duty to make reasonable adjustments amounts to an unlawful act of discrimination.

From paragraph 22, Elias LJ addressed the relationship of Section 20 to other forms of disability discrimination. He drew attention to various matters, including that the definition of discrimination arising out of disability does not involve any comparison with a non-disabled person; it refers to unfavourable treatment, not less favourable treatment; and that it is perfectly possible for a single act of the employer, not amounting to direct discrimination, to constitute a breach of each of the other three forms.

Elias LJ, at paragraph 48, ruled that it was an error to assume that the ruling of the House of Lords in Lewisham LBC v Malcolm [2008] UKHL 43, (2008) 1 AC 1399, which was concerned with the nature of the appropriate comparison under the old concept of disability-related discrimination, is applicable to the obligation to make reasonable adjustments. That comparison is inapt in the case of the adjustment duty.