Holmes v Leicester City Council

Arthur Moore successfully represented Leicester City Council in a homelessness appeal in which the grounds of appeal concentrated on the application of the public sector equality duty set out in section 149 of the Equality Act 2010.

Section 49A of the Disability Discrimination Act 1995 provided:

"(1) Every public authority shall in carrying out its functions have due regard to—

(a) the need to eliminate discrimination that is unlawful under this Act;

(b) the need to eliminate harassment of disabled persons that is related to their disabilities;

(c) the need to promote equality of opportunity between disabled persons and other persons;

(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;

(e) the need to promote positive attitudes towards disabled persons; and

(f) the need to encourage participation by disabled persons in public life."

In Pieretti v LB Enfield [2011] 2 All ER 642 the Court of Appeal held that a local authority in exercising its powers under Part VII Housing Act 1996 (Homelessness) was carrying out a “function” for the purposes of s.49A.  It was therefore an obligation on the Local Authority to have “due regard” to the factors set out in the section and, in the case of homelessness, in particular to have “due regard” to “the need to take steps to take account of disabled persons’ disabilities”.  Moreover, this duty arose irrespective of whether or not the applicant, or their advisers, had raised disability as an issue1.

Pieretti was a case in which the applicants were evicted for rent arrears. In the course of their application for assistance as homeless persons they had filled in two sets of forms, one of which suggested there were mental illness and disability issues, and one which did not.  Moreover, medical evidence had been supplied from the applicants’ GP which showed that both were suffering from depression, and had previously been assessed as “disabled”.  The Local Authority did absolutely nothing to pursue any line of inquiry in relation to the mental illness, either at the initial decision stage or on review, and concluded in the end that the applicants had made themselves homeless intentionally by reason of the failure to pay rent.  An appeal to the County Court failed.

The Court of Appeal held that the depression might have had an impact on the applicants’ ability to control their tenancy (pay rent) and therefore on the question of whether their failure to pay was “deliberate”.  Moreover, disability could effect whether they were acting “in good faith”.  Since the Local Authority had clearly taken no steps to pursue the issue of disability, and how this might impact on these questions, the decision was unlawful and was quashed.

The decision therefore rested on the fact that the Local Authority had done nothing in relation to pursuing disability as a line of inquiry.  This left open the question of what exactly a local authority had to do in order to comply with its duty.

This was the question that came before HHJ Worster in the Birmingham County Court on 14 November 2012 in the case of Holmes v Leicester City Council.

Since Pieretti was decided, s49A of the DDA 1995 has been repealed and replaced in stronger and wider terms by s149 of the Equality Act 2010.  So the section under consideration by the Court was s149 of the new Act.  However, it was common ground that the Pieretti principles applied to the new section.

So far as relevant, s149 provides:

"149  Public sector equality duty

(1)     A public authority must, in the exercise of its functions, have due regard to the need to—

(a)     eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)     advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)     foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

…

(4)     The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities."

Ms Holmes was appealing against Leicester’s decision that she was intentionally homeless by reason of her failure to pay rent.  By the time of the review there was a considerable amount of evidence from Ms Holmes’ GP and a consultant psychiatrist.  It was clear on the evidence that she suffered from depression on and off and also suffered from a severe personality disorder.  This had the effect of making her respond in a “child like” way to any adverse situations.  She would “bury her head in the sand” and not tackle any problems which arose in an appropriate way.

It was initially submitted by Shelter on Ms Holmes’ behalf that her mental illness made her vulnerable for the purposes of Part VII.  Leicester agreed.  It was then submitted that the effect of her illness, or disability, meant that her failure to pay the rent could not be considered to have been “deliberate” as her personality disorder effectively prevented her from dealing with her tenancy appropriately.

Leicester contacted the GP and attempted to contact the psychiatrist, who would not cooperate. Leicester concluded that Ms Holmes was homeless and in priority need but that she had made herself homeless intentionally.  Leicester did not accept that her medical problems meant that she did not have capacity to manage her affairs, specifically her tenancy. In particular, Ms Holmes had held the tenancy for seven years, had dealt successfully with housing benefit issues which arose in the past, and had been able to access help and assistance when she needed it.

On appeal no criticism was made of Leicester’s inquiries.  What was said was that neither of the decisions addressed the medical material in the right way.  In particular, no specific mention of s149 was made, and there was no reference to disability in terms.  It was argued that a failure to go through the correct hoops: Is there a disability within the meaning of the Act?  If so, does it effect the questions to be determined under Part VII? And if so, what “due regard” should the local authority give?- meant that the decision was unlawful

It was in fact the case that neither the original decision maker nor the review officer referred to s149 nor used the word “disability” in their reasoning.  What they both did do however (and there was no dispute on this) was to consider all the available evidence.  Both decision makers accepted the evidence.  Moreover, they both considered that the evidence showed Ms Holmes to be vulnerable.  However, the decision makers then went on to consider the impact of Ms Holmes’ problems on her ability to manage her tenancy.  Both decision makers concluded that her medical problems did not impact on her ability to manage her tenancy.  This conclusion was not challenged on appeal.

HHJ Worster found that neither the absence of specific reference to s149 nor the absence of the term “disability”  in the decisions meant that the issues had not been considered properly.  What was important was the substance, not the form.  Both decision makers had considered and accepted the medical evidence.  They both concluded that the evidence did not show that Ms Mitchell lacked  “capacity” to manage her tenancy.  “Capacity” was the language of the Guidance to the 1996 Act not the language of the 2010 Act.  Obviously, it would have been preferable if the decisions had been more structured, but in substance the right issues were considered.  The local authority was only required to have “due regard” to a disability which was “relevant” to an issue to be decided under Part VII (Pieretti para 35).  The decision makers had considered that the evidence did not support an assertion that Ms Holmes was unable to pay her rent due to her mental illness. Her mental problems were therefore not relevant. In substance, the decision makers had addressed the correct questions. The EA 2010 doesn’t import a new and free standing decision-making process, rather in taking its decisions under Part VII of the 1996 Act a local authority is to have regard to the relevant factors set out in the EA 2010. 

Consideration of the EA 2010 is part of the greater decision, not a separate part of it.

The effect of this decision is that while a local authority must consider the application of s149 in any case where medical evidence shows (or might, on further inquiry show) that a disability exists, it will be enough to satisfy s.149 if the impact of the alleged medical problem on the application is explicitly considered, even absent any specific reference to s149 or to disability.  Clearly, any decision maker (whether at the s184 or the s202 stage) would be very well advised to make specific reference to s149, and to couch any conclusions in the language of the EEA 2010, as well as that of Part VII of the 1996 Act precisely so as to avoid an appeal on the basis, as in this case, that absence of such a reference meant that the matters had not been considered properly or at all.

Arthur Moore represented the Respondent Local Authority

1 thus overruling, to this limited extent, the ruling in Cramp v Hastings [2005] HLR 48