Juggling Disability and Possession

Juggling requires considerable dexterity if the objects juggled are to remain air-borne and not fall clumsily (indeed humiliatingly) to the floor.  And, metaphorically at least, local authorities do need considerable legerdemain, given their broad spectrum of often overlapping legal responsibilities. A recent decision of the Court of Appeal underlined this as Barnsley MBC had to try and trace a path through the labyrinth of equalities and housing possession law.

The case in question was Barnsley MBC v. Norton and Others [2011] EWCA Civ 834 and the leading judgment was given by Lloyd LJ.  Maurice Kay LJ concurred and Carnwath LJ agreed with the outcome.

The appeal concerned an order for possession brought by the Council against Mr. Norton, a former Council school caretaker, whose employment had been terminated for misconduct.

Mr. Norton had a tenancy of the caretaker’s house which his employment had required him to occupy. These premises had been adapted by the Council to accommodate Mr. Norton’s daughter who had been born with cerebral palsy and suffered disability under the Disability Discrimination Act 1995.

Mr. Norton appealed against the possession order on the basis that: (1) the Council was in breach of its duty under section 49A of the Disability Discrimination Act 1995 and (2) that to make an order for possession was disproportionate in the light of Article 8 of the European Convention on Human Rights (Right to respect for Private and Family Life).

Decision of the Court of Appeal

Section 49A(1)(d) required every public authority in carrying out its functions to have due regard to ‘the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons’. This is now of course part of the public sector equality duty in section 149 of the Equality Act 2010.

Given that there had been no evidence before the county court as to whether those deciding to take possession proceedings positively considered the daughter’s disability, the Court of Appeal proceeded on the same footing as the County Court judge, i.e. that the Council had failed in this case to have any regard to the need to take steps to take account of the daughter’s disability at that stage.

Following Pieretti v.Enfield Borough Council [2010] EWCA Civ 1104, Lloyd LJ considered it clear that the 1995 Act duty applied widely and was not something to be considered only when a public authority exercises functions bearing on the rights of a disabled person under some other specific legislation. He referred to the comments of Aikens LJ in the key decision in R (Brown) v. Secretary of State for Work and Pensions [2008) EWHC 3158.

There Aikens LJ (amongst other things) had indicated that those in public authorities taking relevant decisions must be made aware of their duty to have regard to the identified goals.

‘Due regard’ also involves a conscious approach and state of mind. In addition, the duty is a continuing one and it is good practice for relevant decision-makers to keep an adequate record showing that they had actually considered their disability equality duties and addressed material questions.

Lloyd LJ said that if the Council’s position had been that it needed firstly to establish its right to possession before giving subsequent consideration to the daughter’s disability, that would have been proper and rational, provided the subsequent consideration did in fact take place.  However, the Council was in fact seeking to establish that it did not need to address the implications of possession proceedings for an occupant known to be severely disabled since if it obtained a possession order the disability would fall to be addressed if and when the family make a homeless application under Part VII of the Housing Act 1996.

In the circumstances the Court of Appeal considered that it had been ‘incumbent on the Council to have regard to the need to take steps to take account of . . .[the daughter’s]. . .disability’. However, to what conclusion that would lead the Council was not for the Court to say, and, as Lloyd LJ pointed out, ‘. . .of course the need for the premises to be used by a new caretaker was highly relevant’.  Nevertheless, the Council had been in breach of section 49A for failing to address its duty before commencing the proceedings or at any stage during them.

However, when the Court came to consider the consequences of the breach in the particular circumstances, the outcome was more favourable for the Council.  Lloyd LJ noted that if the Council’s failure to comply with its relevant duties had been challenged under judicial review rather than by a defence to a possession claim it would have been open to the Court to conclude that, despite a proven past breach, the decisions already taken should not be set aside provided that the Council could now be relied upon to exercise its relevant future functions properly.

In the circumstances Lloyd LJ considered that if the decision would not have been set aside on judicial review it should not provide a basis for a defence to possession proceedings.

Whilst the availability of a public law defence in private law proceedings had been established in Wandsworth Borough Council v. Winder [1985] AC 461, the decision at issue in that case ‘had been taken once and for all’, i.e. to increase the level of rent payable by council tenants including the Defendant. However, in the present case the Council’s duty was continuing.

And the time when a possession order has been made is in practice the most significant stage at which the duty needs properly to be discharged. Before that, the Court noted, it was a question of looking to the future with an imperative for the Council of establishing that the house could be made available for a new caretaker. Once an order for possession has been made it was for the Council to deal with its functions of providing suitable accommodation for those in question in accordance with applicable duties under the Housing Act as well as (currently) the Equality Act 2010. Lloyd LJ did not see that in practice the position could or should be different under Article 8.

In the circumstances (albeit by a different route) the Court of Appeal reached the same conclusion as the judge below, namely that it was right to make an order for possession and to leave it to the Council to deal properly (under s149 of the Equality Act 2010 and otherwise) with the logically consequent issue of the daughter’s need for new accommodation. Aligning discharge of extensive and pervasive equalities duties with proper discharge of other functions against an austerity backdrop is certainly testing for authorities. But whilst in this case the Council may have dropped one of the juggling clubs, in the event the Court of Appeal did not stop the show.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for the Association of Council Secretaries and Solicitors.

He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it.

© Nicholas Dobson