Barnsley Metropolitan Borough Council v Norton & Ors

A public authority’s disability equality duty applies whenever it exercises a function that may adversely affect a disabled person. This includes a decision to seek possession of the person’s home. The authority must give such regard to the person’s disability as is appropriate in all the circumstances.

The duty is continuing. A failure to address it before proceedings begin may therefore be remedied by proper consideration at a later stage. A proven breach does not automatically invalidate a possession order where the authority has an unqualified private law right to possession, has a compelling need for the property, controls enforcement and remains obliged to secure suitable alternative accommodation.

The Council employed Mr Norton as a school caretaker and provided a house which he was required to occupy for his employment. After his dismissal for misconduct, it obtained a possession order from Barnsley County Court. His wife and their severely disabled adult daughter, Sam, also occupied the adapted property.

The family accepted that the Council had an unqualified private law right to possession. They challenged the decision to commence and continue the proceedings on public law grounds. They contended that the Council had failed to comply with section 49A(1)(d) of the Disability Discrimination Act 1995 and that possession was disproportionate under article 8 of the European Convention on Human Rights.

The central questions were whether the disability equality duty applied to the possession decision, whether it had been breached and whether any breach required the possession order to be set aside.

1. Appeal dismissed. Lloyd LJ, with whom Maurice Kay LJ agreed, held that the Council had breached section 49A(1)(d) of the Disability Discrimination Act 1995. Nevertheless, the county court had been entitled to make the possession order. Carnwath LJ agreed with that disposition and with the conclusion that the decision to seek possession was legally defective.

2. The statutory duty was not confined to functions affecting rights arising under other legislation. It applied generally when a public authority exercised a function which might materially affect a disabled person. Seeking possession of Sam’s adapted home was such a function. The Council therefore had to consider the need to take account of her disability before commencing the proceedings or at a later stage during them.

3. Due regard meant such regard as was appropriate in all the circumstances. It required a conscious approach, substantive and rigorous consideration, and an open mind. The duty was continuing. An adequate record of the authority’s consideration was good practice. Carnwath LJ emphasised that the duty did not necessarily require immediate action to obtain alternative accommodation. It was sufficient for the authority to have the need for appropriate steps in mind and to act at the appropriate time.

4. The Council had not shown that the relevant decision-makers considered Sam’s disability before or during the proceedings. It could not treat the prospective operation of Parts 6 or 7 of the Housing Act 1996 as a complete answer to its disability equality duty. The Council knew that displacement could cause serious difficulty and was obliged to address the need for suitable future accommodation.

5. The breach did not require dismissal of the possession claim or discharge of the order. The duty could still be performed because it continued through the enforcement stage. The Council had an unqualified private law right to possession, a compelling need to house a replacement caretaker, control over the timing of enforcement and duties to provide suitable accommodation. A public law breach relied upon as a defence need not defeat possession where the impugned decision would not have been set aside on judicial review and the authority can be expected properly to discharge its continuing duties.

6. It was unnecessary to determine the separate article 8 ground. The Council was required to perform its housing functions and its current duty under section 149 of the Equality Act 2010, taking proper account of Sam’s disability before enforcing possession.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Court held that the Council had breached its disability equality duty, but upheld the possession order.
2. Barnsley County Court: His Honour Judge Swanson made a possession order on 17 December 2010. He rejected the disability equality and article 8 challenges.