Disabled claimant loses judicial review challenge over alleged inaction by council in addressing noise and smells
A woman with a heightened sensitivity or hypersensitivity to noise and to smell has lost a judicial review in the High Court after Mr Justice Murray decided there was nothing more the Royal Borough of Kensington & Chelsea (RBKC) could reasonably have done to relieve the situation.
FG ‘s claim was based on her status as a disabled person, with paranoid schizophrenia, generalised anxiety disorder and severe major depression with psychotic features.
This included auditory and olfactory hallucinations, the court heard.
“A complicating factor, however, is that…the symptoms of FG’s mental illness include auditory and olfactory hallucinations,” the judge said.
“The noise that FG complains of appears to come principally from [a flat] in her building, which is situated immediately below [her flat].” She also complained of a foul smell in her flat.
She claimed the council discriminated against her, and subjected her to detriment in the provision of a service under the Equality Act 2010, by refusing or failing to take reasonable steps to address both the noise and smells issues.
FG also claimed the council failed to have due regard to the need to eliminate discrimination and so was breach of the public sector equality duty.
The court heard that a succession of environmental health officers, surveyors, noise consultants and other specialists had visited the flats without finding the noise was anything unusual in a block of flats in an urban area.
Measures were taken to remedy a smell found at one point but after that nothing untoward was apparent.
FG had been accepted as homeless in 2015 and bid for a flat where she later reported suffering distress due to noise, which the council could not remedy as it did not own the common parts.
She then moved to her current flat and the council carried out works to address the recommendations of an occupational therapist.
FG moved in but did not consider the noise and smell issues had been resolved and her solicitors complained to the council. However, inspection visits found nothing unusual.
She submitted that even if the noise level was average that did not answer the claim her paranoid schizophrenia was a protected characteristic shared with other sufferers from the same disability and that the council failed to have due regard to the fact that compliance with the PSED may involve treating disabled persons more favourably than non-disabled persons.
The council said it accepted FG is disabled but that the case fell under Part 4 of the Equality Act 2010, and therefore the 'Second Requirement' did not apply.
This requirement states that where a physical feature puts a disabled person at a substantial disadvantage with persons who are not disabled, reasonable steps should be taken to avoid the disadvantage.
The council said Part 4 applied as it is a person who manages premises and the provision of Flat 7 to FG is not “for the purpose” of exercising a public function, but for complying with its private law contractual obligations under the tenancy agreement.
RBKC said the Court of Appeal in Finnigan v Chief Constable of Northumbria Police [2013] EWCA Civ 1191, [2014] 1 WLR 445 (CA) made clear the duty to make reasonable adjustments is anticipatory and is determined by reference to the needs of disabled persons as a class and not by reference to an individual in a specific case.
Murray J said in his judgment: “For a number of reasons, I consider that this claim clearly falls under Part 4 of the Equality Act 2010.”
He continued: “The management of let premises, however, involves a wide and varying range of activities, responsibilities, and special considerations.
“It is not feasible for a social landlord to be expected to anticipate and proactively make reasonable adjustments for the wide range of ‘relevant matters’ that could arise in relation to the multiplicity of possible disabilities (such as, in this case, hypersensitivity to noise or smell).
“This, presumably, is the reason why Parliament determined that in the Equality Act 2010 it should draw a distinction between, on the one hand, services and public functions, and on the other hand, premises, and deal with each of these areas in separate parts of the Act.”
He said there was “no reasonable adjustment that RBKC can make that would reduce or eliminate the substantial disadvantage suffered by FG as a result of any auditory or olfactory hallucination that she may suffer as a symptom of her paranoid schizophrenia.
“To be fair, FG is not suggesting that. On the other hand, there is no expert evidence in this case that either the noise issue or the smell issue arises to the level of a statutory nuisance.”
It would have been reasonable for RBKC to anticipate FG’s problems only if “there is a sufficient class of such persons such that it would be apparent to a reasonable landlord that such steps should be taken”, and evidence was lacking that this was the case.
Murray J said he was “satisfied that RBKC has not contravened its duty to make reasonable adjustments”, as works proposed to remedy FG’s problems were costly and disruptive and would adversely affect the flat below.
The council had been entitled to conclude it could not move FG elsewhere as “there is no evidence that RBKC has in its housing stock an alternative property available where the noise issue would not arise, given that the noise issue arises at what is, objectively speaking, a normal level”.
It had also “clearly allocated significant resources to investigating and attempting to address the smell issue” and provided evidence it had complied with recommended works.
“Under the circumstances, it is hard to envisage what more it can reasonably be expected to do,” Murray J said.
“Accordingly, I am satisfied that RBKC has not discriminated against FG in contravention of the Equality Act 2010 by failing to make reasonable adjustments in relation to the smell issue.”
He ruled that since FG had lost on both the noise and smells issues the point about the equality duty did not arise.
Mark Smulian
