Lalli v Spirita Housing Limited

The Court of Appeal dismissed the appellant's challenge to the Nottingham County Court judge's rejection of claims under the Disability Discrimination Act 1995 and the Race Relations Act 1975. The central legal issues were whether the respondent failed to make reasonable adjustments under the 1995 Act (in its capacity as a service provider, controller/manager of premises and public authority) by communicating by letter and by instituting and pursuing anti‑social behaviour injunction proceedings, and whether the letter constituted indirect race discrimination.

The court held that the appellant was a disabled person for the purposes of the 1995 Act and that the duty to make reasonable adjustments could be engaged where an impairment affected day‑to‑day activities. However, on the facts the letter of 9 March and the manner in which proceedings were pursued did not make the appellant’s experience unreasonably adverse or make it impossible or unreasonably difficult for him to use the communal lounge, not least because assistance and representation were available, and because the decision to seek an injunction was justified to protect other residents. The Race Relations Act complaint was also rejected: any prima facie indirect discrimination in sending an English letter was justified.

The appellant, an assured tenant in sheltered accommodation who suffered cognitive impairment and was functionally illiterate, was the subject of complaints about his conduct at the communal lounge. After incidents in March 2009 the respondent housing association wrote to him (9 March), met him, and obtained an interim anti‑social behaviour injunction (18 March) restricting his access to the lounge in evening hours. The appellant later obtained an expert report from a neuro‑psychologist confirming generalised cognitive impairment and functional illiteracy; the Official Solicitor became involved and the respondent subsequently discontinued the injunction proceedings.

The appellant issued county court proceedings alleging discrimination under the Disability Discrimination Act 1995 (failure to make reasonable adjustments as a service provider, controller of premises and public authority) and parts of the Race Relations Act 1975 (indirect discrimination). At first instance His Honour Judge Barrie rejected the complaints. The appellant appealed to the Court of Appeal.

The Court of Appeal framed the issues as (i) whether the duty to make reasonable adjustments under sections 19 and 21 (services), sections 24A/24D (controllers/managers of premises) and sections 21B/21D/21E (public authority functions) was engaged, (ii) whether the letter and the manner of pursuing injunction proceedings were failures to make reasonable adjustments that caused an unreasonably adverse experience or made access unreasonably difficult, and (iii) whether any such failure was justified.

The court accepted that the appellant’s present inability to read English was an effect of his mental impairment and so capable of engaging the reasonable adjustment duty, but held that (a) the choice to communicate by letter was reasonable, (b) assistance and sources of help (Derby Racial Equality Council, later legal representation, and the possibility of advocacy) meant the proceedings did not make his access unreasonably difficult, and (c) seeking an injunction was justified to protect other residents. The court noted that the public authority duty in section 49A of the 1995 Act did not of itself create a cause of action and that, even if the respondent could have made further inquiries earlier, the judge’s finding that pursuit of the injunction was justified was sustainable. The indirect race discrimination complaint failed because the sending of the letter was proportionate and not to the appellant’s detriment.

Appeal dismissed. The Court of Appeal upheld the county court's findings that although the appellant was disabled and could be functionally illiterate as a result of impairment, the sending of the letter and the pursuit of injunction proceedings did not amount to unlawful failure to make reasonable adjustments or to unlawful indirect racial discrimination. The decision to seek an injunction was justified to protect other residents and assistance was available to the appellant so the experience was not shown to be unreasonably adverse.

Appeal from Nottingham County Court (His Honour Judge Barrie, No: 9DE01527). The appeal was heard in the Court of Appeal (Civil Division) and decided at Royal Courts of Justice on 24 April 2012, reported as [2012] EWCA Civ 497.