Pieretti v London Borough of Enfield

The disability equality duty under section 49A(1) of the Disability Discrimination Act 1995 applies to individual homelessness decisions, including initial inquiries and reviews under Part VII of the Housing Act 1996. It complements the disability protections within the homelessness scheme. Where the evidence raises a real possibility of a disability relevant to intentional homelessness, the authority must make appropriate further inquiries. The disability need not have been expressly raised or be obvious. Authorities need not investigate disability in every case, but due regard requires appropriate steps where the circumstances warrant them. A county court hearing an appeal on a point of law should not substitute its own factual finding about disability.

Mr Pieretti and his wife applied to the London Borough of Enfield for homelessness assistance after their landlady sought possession of their home. Although possession followed the expiry of their assured shorthold tenancy, Enfield accepted that their history of withholding or delaying rent had caused the landlady to refuse a further tenancy. Following earlier decisions, reviews and a successful county court appeal, Enfield issued a fresh review decision. It accepted that the couple were homeless, eligible for assistance and in priority need, but found that they had become homeless intentionally.

The application materials included a claim of disability and a general practitioner's report describing Mr Pieretti's longstanding depressive illness. Enfield made no further medical inquiries. His Honour Judge Mitchell dismissed Mr Pieretti's appeal on a point of law and found that he was not disabled. Mr Pieretti appealed to the Court of Appeal. Although the couple had subsequently obtained accommodation, the court proceeded because the appeal retained possible practical significance and raised an issue affecting other pending appeals. The central issue was whether the disability equality duty applied to homelessness inquiries and reviews and required further investigation in this case.

1. The appeal was allowed unanimously. Wilson LJ's reasoning was agreed by Longmore and Mummery LJJ. The reviewing officer had breached the disability equality duty by failing to investigate evidence raising a real possibility of a disability relevant to intentional homelessness. The county court's dismissal was set aside, the appeal to that court was allowed and the review decision was quashed.

2. Section 49A(1) of the Disability Discrimination Act 1995 applied to individual decisions as well as policy formulation. The existing disability protections within Part VII of the Housing Act 1996 complemented that duty. Inquiries under section 184 and reviews under section 202 were functions, although they preceded the securing of accommodation. The court stated that the duty applied to all Part VII functions. Its necessary ruling established, at least, its application to inquiry and review (paras 26–31 and 37).

3. The earlier approach in Cramp v. Hastings BC [2005] EWCA Civ 1005 required qualification following the commencement of section 49A. An officer's responsibility to consider disability could arise even where disability had not been expressly raised and was not obvious. This did not require active investigation in every case. Due regard required a conscious approach, undertaken in substance, with rigour and an open mind. Where further steps were appropriate in all the circumstances, failing to take them could not satisfy the duty (paras 32–34).

4. The operative inquiry was whether the evidence raised a real possibility of a disability relevant to whether the applicant's conduct was deliberate under section 191(1), particularly whether it was in good faith within section 191(2). Mr Pieretti's unusual rent-payment history, his attempts to obtain and follow legal advice, the medical report and his disability claim together crossed that threshold. His inconsistent answers on the application forms did not justify ignoring the claim. Further inquiries were required, without deciding that he actually had a relevant disability (paras 35–36).

5. The county court judge's function was to determine points of law rather than find facts about disability. The available medical picture was too incomplete to support his finding. Assessing disability by reference to a person's capabilities without considering their limitations was also dangerous (para 23).

6. No further review was directed because the couple were no longer homeless. No declaration was necessary because the ruling itself had binding effect. The court left open its power to grant the proposed declaration on this appeal (para 37).

• Court of Appeal (Civil Division): In Pieretti v London Borough of Enfield [2010] EWCA Civ 1104 , unanimously allowed the appeal, set aside the county court's dismissal and quashed the review decision. No fresh review was directed.
• Central London County Court: His Honour Judge Mitchell dismissed the appeal under section 204 of the Housing Act 1996 on 12 November 2009. An earlier county court appeal had resulted in a previous review decision being quashed.
• London Borough of Enfield: Following earlier decisions and reviews, its review decision dated 2 June 2009 found that Mr Pieretti and his wife were homeless, eligible and in priority need, but intentionally homeless.