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

Accommodation provided by a local authority to a tenant under a social housing allocation is ordinarily managed as premises under Part 4 of the Equality Act 2010, rather than as a service or public function under Part 3. The exclusion in section 32(3) does not apply where the authority’s provision of accommodation has additional purposes, including compliance with tenancy and landlord obligations.

If Part 3 applies, the Second Requirement is anticipatory and concerns disabled persons sharing a sufficient commonality of disability. A specific duty may nevertheless arise when the authority is put on notice that a physical feature substantially disadvantages a disabled person. Reasonable adjustments are assessed objectively, including their cost, disruption, practicality and likelihood of success.

FG, a disabled tenant with psychosis and heightened sensitivity to noise and smell, sought judicial review of the Royal Borough of Kensington and Chelsea’s alleged failure to address noise from a lower flat and an alleged foul smell in her accommodation.

The claim relied on the reasonable-adjustment duties and public sector equality duty under the Equality Act 2010. At a rolled-up hearing, permission was granted on three grounds. The central issues were whether the claim fell under Part 3 or Part 4, whether the alleged features engaged the Second Requirement, whether the authority had taken reasonable steps, and whether it had complied with the public sector equality duty.

1. Classification. The claim fell under Part 4 of the Equality Act 2010. A local authority provides social housing for multiple purposes, including complying with its statutory allocation obligations, managing its housing stock, and complying with contractual and statutory landlord obligations. It therefore does not provide the accommodation solely for the purpose of exercising a public function under section 32(3)(b).
2. Alternative Part 3 analysis. If Part 3 applied, the Second Requirement would impose an anticipatory duty by reference to disabled persons as a class, understood as persons sharing sufficient commonality of disability. The evidence did not establish a sufficient class of persons whose psychosis caused hypersensitivity to actual noise or smell such that the authority could reasonably have anticipated the disadvantage.
3. A specific duty could nevertheless arise once the authority was notified of the relevant disability-related disadvantage. A physical feature was not excluded merely because it had not been brought onto premises by or on behalf of the authority. The word “includes” in paragraph 2(6) of Schedule 2 had its natural expansive meaning.
4. In any event, the authority had not failed to make reasonable adjustments. In relation to noise, the proposed structural works were too costly and disruptive, particularly because they would affect the lower flat and reduce living space. Further expert investigation was not justified where an adequate expert report already existed. Decanting was not shown to be reasonable, given the statutory allocation scheme, the absence of evidence of a suitable alternative property, and the resources required to investigate one.
5. In relation to smell, the authority had undertaken substantial investigations and works, including cleaning pipework, inspecting and descaling the stack pipe, and sealing the boxing. It was difficult to identify any further reasonable step required on the evidence.
6. The public sector equality duty claim failed because nothing survived the failure of the substantive discrimination grounds. Although the claim was brought late, the court extended time and did not refuse relief on delay grounds.
7. Permission was refused on the superseded grounds. The judicial review claim was dismissed.