Barnsley MBC v Norton

The Court of Appeal held that the Council breached its duty under section 49A of the Disability Discrimination Act 1995 by failing to have due regard to the disabilities of the occupier's daughter when deciding to commence possession proceedings. The court accepted that the duty in section 49A (now reflected in section 149 of the Equality Act 2010) applies to individual decisions of public authorities and requires a conscious, proportionate appraisal where the decision could materially affect a disabled person. The breach did not, however, justify setting aside the possession order: the county court was entitled to make the possession order because the Council had an unchallenged private law right to possession and a pressing need for the property. Instead the appropriate remedy was to require the Council to discharge its continuing statutory duties (under the Housing Act 1996 and section 149 Equality Act 2010) to secure suitable alternative accommodation for the family.

This is an appeal from an order for possession made by His Honour Judge Swanson in Barnsley County Court on 17 December 2010. The defendants (the Norton family) occupied a caretaker's house provided by Barnsley Metropolitan Borough Council. The appellant family raised public law challenges rather than a private law defence: (1) that the Council breached section 49A of the Disability Discrimination Act 1995 by failing to have due regard to the disabled daughter Samantha's needs when commencing possession proceedings; and (2) that making the possession order was disproportionate under Article 8 ECHR and the Human Rights Act 1998.

Background and facts:

• Mr Norton was employed by the Council as a school caretaker; his employment ended in November 2009 for misconduct and the Council sought possession to provide accommodation for a new caretaker.
• Samantha Norton was born with cerebral palsy and epilepsy, has restricted mobility and learning difficulties, had adaptations to the house provided by the Council and lived with her parents; at the hearing she was pregnant and intended to continue living with her family.

Procedural posture: Appeal to the Court of Appeal (permission given by Rimer LJ). The county court had decided the defendant did not have security of tenure and made a possession order; that decision as to tenure was not challenged on appeal. The appeal therefore concerned public law and human rights grounds only.

Issues framed:

• Whether the Council breached section 49A(1)(d) DDA by failing to have due regard to Samantha's disability when commencing possession proceedings.
• Whether an order for possession was disproportionate under Article 8 ECHR.

Court's reasoning:

• The court accepted the established analysis in Pieretti v Enfield that section 49A applies to individual decisions and that "due regard" requires a conscious, proportionate approach. Given that the Council knew of Samantha's disability and that possession would materially affect her, the duty applied when the Council decided to seek possession.
• The judge below accepted there was no evidence that those taking the decision had had regard to Samantha's disability; the Court of Appeal held that this was a legal failing and therefore the first ground of appeal was made out.
• Nonetheless the court concluded that the possession order itself was lawful and appropriate in the circumstances: the Council had a private law right to possession and a pressing operational need. The court declined to set aside the possession order; instead it required the Council to remedy the breach by giving proper consideration to Samantha's needs and, where appropriate, providing suitable accommodation under Parts 6 or 7 of the Housing Act 1996, and to act in accordance with the duty now contained in section 149 of the Equality Act 2010.
• The court did not need to decide the Article 8 ground given the successful DDA point and the remedy required.

Appeal dismissed. The Court held that the Council breached section 49A(1)(d) of the Disability Discrimination Act 1995 by failing to have due regard to the disabled daughter’s needs when commencing possession proceedings, but the possession order itself was properly made given the Council’s private law right and pressing need for the property. The appropriate remedy was not to set aside the order but to require the Council to discharge its continuing duties under the Housing Act 1996 and under section 149 of the Equality Act 2010 to secure suitable alternative accommodation.

Appeal from Barnsley County Court (His Honour Judge Swanson) against an order for possession dated 17 December 2010. Permission to appeal granted by Rimer LJ. Hearing in the Court of Appeal on 25 May 2011; judgment handed down 21 July 2011 (neutral citation [2011] EWCA Civ 834).