Birmingham City Council v Wilson

A housing authority must take reasonable steps to inform itself about matters relevant to a homelessness decision and must act with due regard to the public sector equality duty. Where information raises a real possibility that an applicant or household member is disabled in a way relevant to accommodation suitability, further inquiry may be required. The threshold is assessed by the reviewing officer, subject to rationality review. The authority may invite further evidence and consider the absence of a response. It need not investigate indefinitely where, after a reasonable inquiry, it can rationally conclude that no real possibility of disability remains. The appeal was allowed because the lower court substituted its own view for that of the reviewing officer.

Birmingham City Council accepted a full housing duty towards Ms Wilson and her children under section 193 of the Housing Act 1996. After she rejected a final offer of an eighth-floor flat, the Council reviewed its decision and concluded that the accommodation was suitable. Ms Wilson appealed to the county court, arguing that the Council had failed to investigate whether her son’s fear of heights and claustrophobia amounted to a disability under the Equality Act 2010. On 17 April 2015, HHJ Oliver-Jones QC allowed the appeal, holding that further inquiries were required. The Council appealed. The central issue was whether the review officer could rationally conclude, following reasonable inquiry, that there was no real possibility of disability requiring further investigation.

Appeal allowed. The county court’s order was set aside and Ms Wilson’s appeal against the Council’s review decision was dismissed.

1. The applicable duty of inquiry required the Council to take reasonable steps to inform itself about matters relevant to assessing the homelessness application and to act compatibly with the public sector equality duty. Under London Borough of Newham v Khatun [2004] EWCA Civ 55, the decision-maker, subject to Wednesbury review, determines the manner and intensity of the inquiry.
2. The equality duty under section 149 of the Equality Act 2010 qualified the earlier approach in Cramp v Hastings BC [2005] HLR 48, which treated obviousness as significant where disability had not been raised. Following Pieretti v London Borough of Enfield [2010] EWCA Civ 1104, a reviewing officer must make further inquiry where the evidence raises a real possibility of disability relevant to the assessment.
3. The question whether that threshold was met was subjective in the first instance: the court had to ask whether the reviewing officer considered that a real possibility arose, or acted irrationally in concluding that it did not. Mr Kennelly had considered the children’s fear of heights, sought further information, interviewed Ms Wilson, explained his proposed reasoning in a minded-to-find letter, and invited further representations.
4. In the absence of medical or professional evidence, and given Ms Wilson’s failure to respond to repeated opportunities to provide further information, Mr Kennelly could rationally conclude that the fear of heights remained within the normal range and that there was no real possibility of disability under section 6 of the Equality Act 2010. No further inquiry was then required by section 149.
5. The county court judge had erred by deciding for himself that a real possibility of disability existed, rather than asking whether the review officer could rationally conclude by the end of the inquiry that none existed.

Lord Justice Beatson and Lady Justice Black agreed. The court also endorsed the desirability of clearer forms and communications explaining the consequences of accepting or rejecting an offer while seeking a review.

1. Court of Appeal (Civil Division): On 17 November 2016, the Council’s appeal was allowed and the county court’s order was replaced with an order dismissing Ms Wilson’s appeal. [2016] EWCA Civ 1137
2. Birmingham Civil Justice Centre: On 17 April 2015, HHJ Oliver-Jones QC allowed Ms Wilson’s appeal against the Council’s review decision, holding that the Council had made inadequate inquiries into whether her son’s condition amounted to a disability.