Having due regard
A recent Court of Appeal case emphasised just how important it is for local authorities to be mindful of their equalities duties when carrying out any function, writes Ian Clarke.
In the case of Barnsley Metropolitan BC v Norton & Ors [2011] EWCA Civ 834, Mr Norton had been employed by Barnsley MBC as a caretaker at a local primary school. Along with the job came the tenancy of a caretaker’s house which he was required to occupy for the purpose of his employment. Mr Norton lived in that house, along with his wife and adult daughter, Sam.
Unfortunately, Mr Norton’s employment came to an end in November 2009 on the grounds of misconduct and the council, naturally enough, sought and gained an order for possession of the property so that they could house a new caretaker.
There was no issue as to the council’s entitlement to possession; the Nortons had no private law defence to the claim. Rather, the appeal revolved around a public law challenge of the council’s decision to bring and to continue with the possession proceedings.
Mr Norton’s daughter Sam was born in 1991 with cerebral palsy and it was common ground that she suffered from a disability under the terms of the DDA. The council were aware of this having adapted the premises to take into account Sam’s disabilities. So, the main question on appeal was whether the council was in breach of its duty under section 49A of the Disability Discrimination Act 1995. That section provides that:
“(1) Every public authority shall in carrying out its functions have due regard to ...
(d) the need to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons.”
As of 5 April 2011 the same duty is imposed by section 149 of the Equality Act 2010. While the council was aware of Sam’s disability it could provide no evidence that when making the decision to seek possession they positively considered her disability.
The council’s position at the appeal was that s49A only need be considered when a public authority was exercising functions that bear on the rights of a disabled person under some other specific legislation.
Lloyd LJ rejected this contention, stating at para 15 that: “In terms, the section is entirely general. It applies to the carrying out of any function of any public authority”
and later at para 17:
“Given that Sam’s position could be critically affected by the council obtaining an order for possession, it seems to me that the council was clearly under a duty to have due regard to the need to take steps to take account of her disability .. due regard means such regard as it appropriate in all the circumstances.”
As such, the local authority had been in breach of its duty. However, the question then arose as to what order the court should make: should the possession order be set aside?
Lloyd LJ noted that if the council’s breach had been challenged by way of judicial review, rather than by way of a defence to the possession claim, it would have been open to the Administrative Court to conclude that, despite the breach, the council’s decision already taken should not be reversed if the court considered that the council could now be relied upon to exercise the relevant functions properly. So, in this case, if the decision would not have been set aside on an application for judicial review, it should not provide a basis for a defence to the possession proceedings.
The possession order was not set aside. The council was saved in this case as it could still consider Samantha’s disability before enforcing the possession order and when exercising its functions to provide other suitable accommodation, and indeed the council provided the appeal court with a witness statement dealing with the steps taken since the conclusion of the trial to identify Sam’s particular needs.
The s.149 duty in the Equality Act is wide and local authorities must be mindful of it when carrying out any function. While the mere fact of a breach of the duty may not lead to a claimant succeeding in a claim (if the practicalities allow for a local authority to subsequently fulfil its duty, or that such a consideration would have made no difference), it cannot be stressed enough that Barnsley MBC would have been saved a good deal of trouble and expense if they had fulfilled their obligation and moreover, kept a record to show that due regard had been had to Sam’s disabilities.
Ian Clarke is a barrister at 1 Chancery Lane.
