Birmingham City Council v Wilson

The Court of Appeal considered the scope of a housing authority's duty of inquiry when the public sector equality duty in section 149 of the Equality Act 2010 is engaged, in the context of decisions under the Housing Act 1996 (notably section 193 and the review procedure under section 202). The court applied the guidance in Pieretti v Enfield about when a reviewer must make further inquiries into a possible disability, and emphasised that the test is whether the reviewer could rationally conclude that there was no "real possibility" of a disability after making reasonable enquiries.

On the facts the reviewer had asked for further information, conducted a telephone enquiry, issued a "minded to" letter setting out detailed reasons and invited further representations, and then reached a conclusion that the children’s fear of heights was within the normal range and did not indicate a disability within the meaning of the 2010 Act. The Court of Appeal held that the reviewer’s approach was rational and that the county court had erred by substituting its own view for the reviewer’s assessment.

Background and parties:

• The appellant council had accepted a section 193 duty to a homeless mother, Ms Wilson, and her two sons after an application made on 19 March 2014. The council placed the household in temporary accommodation and later offered a management allocation in a high-rise flat as a final offer. The applicant rejected the offer and sought a review under section 202. The reviewer (on behalf of the council) concluded the offer was suitable. The county court allowed an appeal against that review decision on the basis that the reviewer had failed to make adequate inquiries into whether one child, Romareo, suffered from a disability arising from fear of heights and claustrophobia.
• The council appealed to the Court of Appeal seeking to overturn the county court’s decision.

Nature of the claim and relief sought:

• The council sought to overturn the county court decision that quashed the review decision and to reinstate the reviewer’s conclusion that the offered accommodation was suitable and that the council’s section 193 duty had been discharged.

Issues framed by the Court:

1. What is the scope of the duty of inquiry owed by a housing authority and its reviewer when the public sector equality duty in section 149 of the Equality Act 2010 may be engaged?
2. Was the reviewer required to make further enquiries to determine whether the child had a disability for the purposes of the Equality Act 2010?
3. Did the reviewer take reasonable steps and reach a rational conclusion under the correct legal test?

Court’s reasoning and key findings:

• The court set out the statutory context: the duty to secure accommodation under section 193 of the Housing Act 1996, the review procedure under section 202 and the public sector equality duty in section 149 of the Equality Act 2010. Section 6(1) of the 2010 Act (definition of "disability") was noted.
• The court accepted the parties’ common ground that the reviewer’s duty is to take reasonable steps to inform himself of relevant matters and to do so compatibly with the equality duty. The authorities on the intensity of inquiry (including Khatun and Cramp) were summarised and the Pieretti formulation was applied: once evidence raises a "real possibility" of disability a reviewer must make further inquiry, but otherwise the intensity of enquiry is for the decision-maker, subject to Wednesbury review.
• The Court of Appeal held that the correct question on appeal was whether the reviewer could rationally conclude, after the inquiries he did make, that there was no real possibility that either child was disabled within the meaning of the 2010 Act. The reviewer had invited additional evidence, conducted a follow-up telephone enquiry, issued a reasoned "minded to" letter and gave a final decision after further time to respond. In those circumstances the reviewer rationally concluded the children’s fear of heights fell within the normal spectrum and did not amount to disability, so no further investigation under section 149 was required.
• The county court had erred by applying its own judgment to the existence of a real possibility of disability rather than asking whether the reviewer’s conclusion was rational.

Disposition and appellate outcome:

• The Court of Appeal allowed the council’s appeal and substituted an order dismissing the appeal to the county court.
• The court also noted, as a subsidiary practical point, that the council should improve the clarity of its standard forms and letters explaining the consequences of accepting or rejecting an offered property while seeking a review.

Appeal allowed. The Court of Appeal held that the reviewer conducted reasonable inquiries and could rationally conclude that there was no real possibility that either child had a disability within the meaning of the Equality Act 2010. The county court had erred by substituting its own view for the reviewer’s rational assessment, so the review decision that the offered accommodation was suitable was reinstated.

Appeal from the decision of His Honour Judge Oliver-Jones QC at Birmingham Civil Justice Centre (judge allowed the claimant's appeal on 17 April 2015). The appeal was heard in the Court of Appeal (hearing 26 October 2016) and the judgment was handed down on 17 November 2016 ([2016] EWCA Civ 1137).