November 21st, 2016 by James Goudie KC

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.




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