FG, R (on the application of) v Royal Borough of Kensington Chelsea

The claimant, a disabled tenant with paranoid schizophrenia and hypersensitivities to noise and smell, challenged the Royal Borough of Kensington and Chelsea under the Equality Act 2010 for failing to take reasonable adjustments in respect of noise from the flat below (Flat 5) and a foul smell in her flat (Flat 7), and for breach of the public sector equality duty in relation to those matters. The court analysed whether the claim fell within Part 3 (services and public functions) or Part 4 (premises) of the Equality Act 2010 and the scope of the Second Requirement in section 20(4).

The judge held that the claim falls within Part 4 (Premises) rather than Part 3, so the Second Requirement (the anticipatory duty to remove or alter a physical feature) did not apply. Even if Part 3 applied, the court found no anticipatory duty on the facts and, in any event, concluded that once RBKC was put on notice a specific duty could arise; here RBKC had investigated and taken substantial steps in relation to both noise and smell. The evidence showed noise levels to be objectively within normal ranges and the council had reasonably declined to implement the disruptive and costly structural works proposed by the claimant's expert. The council had investigated and remedied drainage/boxing where indicated and had descaled pipework; further measures or decanting were not shown to be reasonable. The claim under the public sector equality duty failed because nothing survived the failure of the discrimination/adjustments grounds. The judicial review claim was dismissed.

This is a first instance judicial review concerning alleged disability discrimination by a local housing authority in respect of accommodation allocated to the claimant (Flat 7). The claimant, diagnosed with paranoid schizophrenia and related hypersensitivities to noise and smell, sought relief for failures by RBKC to take reasonable steps to address noise from Flat 5 and a foul smell in Flat 7, and alleged breach of the public sector equality duty (PSED).

Background and procedural posture

• The claimant was allocated Flat 7 by RBKC under its housing allocation function and moved in May 2022.
• Extensive correspondence, expert reports and inspections followed concerning noise and smell; the claimant issued this claim (rolled-up) and relied upon grounds that RBKC had not taken reasonable steps recommended by expert reports and had not considered decanting.
• The claim invoked the Equality Act 2010 (notably sections 20, 21, 29 and 149). The judge granted permission on Grounds 1–3 and refused Grounds 4–5 as academic because of a related Care Act claim.

Issues considered by the court

• Whether the claim falls within Part 3 (services/public functions) or Part 4 (premises) of the Equality Act 2010.
• Whether the Second Requirement (section 20(4)) applies and whether anticipatory or specific duties arose.
• Whether, objectively, RBKC failed to take reasonable steps to avoid substantial disadvantage to disabled persons generally or to the claimant in respect of noise and smell.
• Whether RBKC breached the PSED and whether the claim was out of time.

Court's reasoning and conclusions

• The judge concluded the claim falls under Part 4 (Premises). A local authority providing allocated social housing has multiple purposes beyond exercising a public function and its role as controller of let premises is properly dealt with under Part 4.
• Even if Part 3 applied, the court accepted that the Second Requirement is an anticipatory duty owed by reference to disabled persons as a class; the claimant’s evidence did not establish a sufficiently common class necessitating an anticipatory duty for hypersensitivity to noise or smell. A specific duty would arise once RBKC was put on notice, but the evidence showed RBKC had investigated and taken reasonable steps.
• On the facts: noise measurements were marginally below or at acceptable standards and objectively normal; RBKC was entitled to decline the disruptive and expensive structural works proposed. In relation to smell, RBKC carried out pipework cleaning, descaling and inspections and sealed boxing where appropriate; the evidence did not show further reasonable steps that the council had failed to take. Decanting was not shown to be a reasonable obligation of RBKC.
• The PSED claim failed because nothing survived the dismissal of the discrimination/adjustments claims. The claim was not brought promptly but the court exercised discretion and proceeded; ultimately FG’s claim for judicial review was dismissed.

First instance: The claimant's judicial review claim is dismissed. The court held that the claim falls within Part 4 (Premises) of the Equality Act 2010 so the Second Requirement in section 20(4) did not apply; alternatively, on the facts, RBKC had not unlawfully failed to make reasonable adjustments in respect of noise or smell and had not breached the PSED. Accordingly the claim is dismissed.