Pieretti v Enfield LBC

The Court of Appeal held that section 49A(1) of the Disability Discrimination Act 1995 applies to the carrying out of local housing authorities' functions under Part VII of the Housing Act 1996, including duties of inquiry under section 184 and review under section 202. The duty to have "due regard" to the need to take steps to take account of disabled persons' disabilities (s.49A(1)(d)) requires decision-makers to take appropriate steps to investigate an allegation or indication of disability where the material before them raises a real possibility that disability is relevant to the issue to be decided. The reviewing officer failed to make such inquiries in the present case (given the GP's report and the homelessness application), and so breached s.49A(1)(d); accordingly the review decision of 2 June 2009 finding the homelessness to be intentional was quashed.

This is an appeal from the Central London County Court (His Honour Judge Mitchell) challenging a local authority's decision under Part VII of the Housing Act 1996 that the appellant and his wife had become homeless intentionally, with the consequence that only the limited duty under s.190(2) arose.

The appellant and his wife had been evicted from assured shorthold accommodation in June 2008. They applied to the London Borough of Enfield for homelessness assistance and were found by Enfield, after a sequence of decisions and reviews, to be homeless, eligible and in priority need but to have become homeless intentionally. The appellant appealed to the county court under s.204 of the Housing Act 1996, and that appeal was dismissed on 12 November 2009. He then appealed to the Court of Appeal.

The principal issue before the Court of Appeal was whether s.49A(1) of the Disability Discrimination Act 1995 applied to the exercise of functions by local housing authorities under Part VII, and, if so, whether Enfield had breached the duty when determining intentional homelessness. The court examined the statutory definition of disability, the duty in s.49A(1) (in particular subsection (d) concerning steps to take account of disabilities), the Code of Practice issued under s.53(8A) and the Homelessness Code of Guidance under s.182.

The court concluded that s.49A(1) applies to all functions under Part VII, including inquiry and review functions. "Due regard" requires a conscious, substantive and proportionate inquiry where necessary. Given the appellant's homelessness history, the GP's report indicating a long-standing depressive illness, and the appellant's own inconsistent statements about disability on homelessness forms, the reviewing officer should have made further enquiries into whether the appellant's mental impairment was relevant to whether his non-payment of rent was deliberate or was an act done in good faith. Her failure to do so breached s.49A(1)(d).

The Court allowed the appeal, set aside the county court's dismissal of the earlier appeal, and quashed Enfield's review decision dated 2 June 2009. The court did not, however, order a fresh review in the circumstances then presented and declined to make a formal declaration as to the general application of s.49A(1), because its ruling formed the ratio decidendi that s.49A(1) applies to Part VII functions.

Appeal allowed. The Court of Appeal held that s.49A(1) of the Disability Discrimination Act 1995 applies to local housing authorities' functions under Part VII of the Housing Act 1996, including duties of inquiry under s.184 and review under s.202. The reviewing officer breached the duty in s.49A(1)(d) by failing to make further enquiries when the material before her raised a real possibility that the appellant had a disability relevant to the question whether his acts were deliberate or in good faith; the decision on review dated 2 June 2009 was quashed and the county court's dismissal set aside.

Application to London Borough of Enfield (initial decision, review quashed, further decisions culminating in review decision dated 2 June 2009 that homelessness was intentional). Appeal to Central London County Court under s.204 dismissed by His Honour Judge Mitchell on 12 November 2009. Appeal to the Court of Appeal resulting in judgment [2010] EWCA Civ 1104.