Lord Justice Wilson:
A: INTRODUCTION
- Does the duty currently set out in subsection (1) of s.49A of the Disability Discrimination Act 1995 ("the Act of 1995") – being a section which, on a date yet to be specified, will be replaced in stronger and wider terms by s.149 of the Equality Act 2010 – apply to the discharge of duties, and to the exercise of powers, by local housing authorities under Part VII of the Housing Act 1996 ("the Act of 1996"), being the part entitled "Homelessness"? Mr Pieretti, the appellant, seeks a ruling, indeed preferably a declaration, that it does apply to them. The London Borough of Enfield, the respondent, opposes the making of any such ruling, still less of any such declaration; and it adds that, if s.49A(1) applies to them at all, it does so only in the limited circumstances to which I will advert in [29] below.
- The appellant and his wife rented a house in Edmonton under an assured shorthold tenancy. In April 2008 their landlady obtained an order for possession against them. In June 2008 the bailiffs evicted them. Meanwhile, in May 2008, they had applied to Enfield for the provision to them of accommodation. They claimed that Enfield owed them the full duty under s.193 of the Act of 1996 to secure that accommodation was available for their occupation. In other words they claimed that they were (or, upon eviction, would be) homeless and eligible for assistance, that they had a priority need for accommodation and that they were not homeless intentionally or (to be strictly accurate) that Enfield should not be satisfied that they were homeless intentionally.
- Upon their application Enfield made an initial decision. Then a reviewing officer quashed it. Then Enfield made another decision. Then, by way of decision on review, Enfield upheld it. Then, on appeal, a circuit judge quashed the decision on review. Then Enfield made another decision on review. It was contained in a letter to the appellant and his wife dated 2 June 2009 and it represents Enfield's ultimate decision on their application. It was that:
(a) they were homeless;
(b) they were eligible for assistance;
(c) they had a priority need for accommodation in that they were vulnerable as a result of old age and of their medical condition and so fell withins.189(1)(c) of the Act of 1996; but
(d) they had become homeless intentionally.
The consequence was that Enfield accepted that it had only the limited duty to the appellant and his wife set out in s.190(2) of the Act of 1996, in particular to secure that accommodation was available for their occupation only for such period as it considered would give them a reasonable opportunity to secure other accommodation.
- The appellant brought a second appeal to the county court, on this occasion by way of challenge to Enfield's decision dated 2 June 2009 that he and his wife had become homeless intentionally. He brought the appeal under s.204 of the Act of 1996 and contended that the decision was wrong in law. But on 12 November 2009, in the Central London County Court, His Honour Judge Mitchell dismissed his appeal. The appellant now appeals against the judge's dismissal of his appeal.
- But there is an initial complication: for the appellant and his wife are no longer homeless. Since late in November 2009, unbeknown to their solicitors until shortly before the hearing in this court, they have successively been occupying two sets of premises under two successive assured shorthold tenancies, the second of which subsists and is due to expire in November 2010. So, at the outset of the hearing, Mr Rutledge on behalf of Enfield submitted to us that there was no point in our hearing the appeal.
- We rejected Mr Rutledge's submission in that regard. Ms Monaghan QC, on behalf of the appellant, told us that a few appeals to the county court under s.204 of the Act of 1996 are presently stayed pending the anticipated ruling of this court in the present appeal upon the interface between s.49A(1) of the Act of 1995 and Part VII of the Act of 1996. So we considered that, even if the appeal had become moot, it was in the public interest for us to proceed to hear it: see the decision of this court in Bowman v. Fels [2005] EWCA Civ 226, [2005] 1 WLR 3083. We were not, however, persuaded that the appeal had become entirely moot. For Ms Monaghan pointed out that, were the appellant and his wife soon to become homeless again and to apply to it for the provision of accommodation under Part VII, Enfield might seek to argue that such accommodation as they had occupied since June 2008 had not been sufficiently settled as to break the chain of causation between their homelessness in June 2008 and their current homelessness and that, to the extent that their homelessness in June 2008 had been intentional, their current homelessness would equally be intentional: on breach in the chain of causation in this context, see the remarks of Lord Hoffmann in R v. Brent LBC ex p Awua [1996] AC 55 at 69A-E. Ms Monaghan added that, were we to leave undisturbed the judge's decision that there was no legal error in Enfield's determination that the homelessness in June 2008 was intentional, the appellant and his wife would be estopped per rem judicatam from challenging it. In response Mr Rutledge was careful to reserve Enfield's ability, in the event of a further application under Part VII, to decide, if so advised, that the chain of causation had not been broken; and he ultimately conceded that, although any conclusion about the absence of breach in the chain could be the subject of challenge if wrong in law, the intentionality of the homelessness in June 2008 could not in that event be the subject of challenge unless we were to quash the decision on review dated 2 June 2009. Although future controversy in this respect between Enfield, on the one hand, and the appellant and his wife, on the other, seems highly improbable, it cannot be dismissed as impossible; and its possibility fortified our resolve to hear the appeal.
B: THE ACT OF 1995
- Section 1 of the Act of 1995 provides:
"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
As its opening words indicate, there is statutory provision which elucidates the meaning of each of the four main elements of the definition in the subsection; furthermore there is guidance about their meaning, which the Secretary of State has issued under s.3 of the Act and which, insofar as it appears relevant, has to be taken into account under subsection (3) thereof in any determination whether a person is disabled. Thus, in relation to impairment, we reach for the guidance. In relation to normal day-to-day activities, we reach for paragraph 4 of Schedule I to the Act and for the guidance. In relation to substantial effect, we reach for the guidance. And, in relation to long-term effect, we reach for paragraph 2 of the schedule and for the guidance.
- Section 49A was inserted into the Act of 1995 by s.3 of the Disability Discrimination Act 2005 with effect, for our purposes, from 4 December 2006. It provides:
"(1) Every public authority shall in carrying out its functions have due regard to –
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life."
I invite the reader of this judgment to concentrate on the words which I have italicised.
- A Code of Practice, entitled "The Duty to Promote Disability Equality" and published in 2006 by the Disability Rights Commission pursuant to s.53(8A) of the Act of 1995, described the duty created by s.49A(1) as the "duty to promote disability equality" (paragraph 1.2) and explained that it "requires public authorities to adopt a proactive approach, mainstreaming disability equality into all decisions and activities" (paragraph 1.13). The subsection provides that the regard to be paid to the six needs identified in it should be "due"; and the code explains that the word "due" comprises two linked elements, namely proportionality and relevance (paragraph 2.34).
C: PART VII OF THE ACT OF 1996
- Part VII of the Act of 1996 imposes a variety of duties and confers a variety of powers on a local housing authority. It might have been convenient for me to refer to them compendiously as functions but I will not do so at this stage because Mr Rutledge argues that they are not, or that some of them are not, functions, at any rate for the purpose of engaging the duty set out in s.49A(1) of the Act of 1995. For example, s.179 of the Act of 1996 imposes a duty to provide advisory services. Section 184 provides that, if it has reason to believe that an applicant may be or become homeless, an authority must make all necessary inquiries whether he is eligible for assistance and if so whether, and if so what, duty is owed to him under later provisions of Part VII. Section 188 creates an interim duty to accommodate an applicant with apparent priority need pending the decision under s.184. Section 190(2) creates what I have described in [3] above as the limited duty to an applicant who has become homeless intentionally. Section 192 creates an even more limited duty to an applicant who, notwithstanding that his homelessness is not intentional, is not in priority need. Section 193 creates what I have described in [2] above as the full duty to accommodate. Section 195 creates an analogous duty to an applicant threatened with homelessness. Section 202 creates a duty to review an adverse decision under Part VII upon request; and s. 188(3) confers a power to accommodate pending the review. Section 204 confers a limited power to accommodate pending an appeal to the county court. Sections 205 and 206 are much stressed by Mr Rutledge: s. 205(1) provides that s. 206 has effect in relation to the discharge by an authority of its functions to secure that accommodation is available for a person's occupation; and s. 205(3) provides that in s. 206 such functions are referred to as the authority's "housing functions under [Part VII]". Section 206(1) thereupon provides that an authority may discharge its housing functions under Part VII only in one of three specified ways, namely by securing either that suitable accommodation provided by itself is available or that the applicant obtains it from some other person or by giving him such assistance as will secure that it is available from some other person.
D: INTENTIONAL HOMELESSNESS UNDER PART VII
- Section 191 of the Act of 1996 provides:
"(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate."
We must note the word "deliberately" in the first subsection and the exclusion from that adverb of certain acts done (or omitted to be done) "in good faith" achieved by the second subsection.
- Section 182(1) of the Act of 1996 provides that, in the exercise of its "functions" (sic) relating to homelessness, an authority shall "have regard" to any guidance given by the Secretary of State. Guidance, entitled "Homelessness Code of Guidance for Local Authorities", was duly issued in 2006. The guidance touches, at 11.16 to 11.20, on the meaning of acts done "deliberately" and, at 11.24 to 11.27, on that of acts done "in good faith" on the part of a person unaware of any relevant fact. Thus it says, at 11.17, that an act should not generally be considered deliberate if it was the result of limited mental capacity or of a temporary aberration caused by mental illness or fragility. By contrast it says, at 11.20, that a person's act may generally be considered deliberate if, among various specified examples, it amounted to his wilful and persistent refusal to pay rent or mortgage instalments or to his significant neglect of his affairs in disregard of sound advice from qualified persons. It gives, at 11.24 and 11.27, two examples of a person who acts in good faith unaware of a relevant fact: namely the person who vacates accommodation in the erroneous belief that he has no legal right to continue to occupy it and the person who falls into arrears of rent when unaware that he is entitled to housing benefit.
E: THE FACTS
- The basis on which, in April 2008, the landlady of the appellant and his wife obtained an order against them for possession of the house in Edmonton was simply that their assured shorthold tenancy had come to an end and that she had given them the notice required by s.21(1)(b) of the Housing Act 1988. Those bare facts disclose nothing intentional about their ensuing homelessness. But the landlady told Enfield that, had it not been for their non-payment, or delayed payment, of rent during the preceding year, she would not have sought to evict them but, rather, would have granted them a further tenancy. Enfield accepted her statement as to why she sought to evict them; and it was entitled to do so. It is common ground that in such circumstances the history of the payment or otherwise of the rent is to be regarded as the cause of the homelessness; and the question becomes whether the acts or omissions of the appellant, on behalf of himself and his wife, in respect of its payment were deliberate within the meaning of s.191 and the guidance.
- The history of the appellant's payment of rent from April 2007 until April 2008, which Enfield sought to discover, was confused. In summary:
(a) the agreed rent was £850 p.m;
(b) at the outset of the tenancy the appellant paid the landlady a deposit equal to two months' rent, viz. £1700;
(c) the entitlement of the appellant and his wife to housing benefit was not such as to cover the entire rent;
(d) adjustments to the amount of their housing benefit, particularly when made retrospective, caused considerable temporary confusion about the amount of the balance payable;
(e) in July 2007 the appellant, who, with his wife, wished to start looking for an alternative home, asked the landlady (whom they distrusted and who reciprocated their distrust) to repay the deposit but she refused to do so on the basis, clearly correct, that it was repayable only at the end of the tenancy;
(f) thereupon the appellant withheld rent equal to the deposit, viz for the months of August and September 2007;
(g) in October 2007 the appellant consulted solicitors, who advised him that he had been wrong to withhold the rent and that in doing so he risked eviction from the home;
(h) the appellant at once accepted the advice and cleared the arrears;
(i) for November 2007 the appellant, wrongly believing that the housing benefit would be paid to him rather than to the landlady, paid her £325; in fact the benefit, namely £697, was paid to her, so for that month there was an overpayment to her which she did not repay to the appellant;
(j) there was a dispute between the appellant and the landlady as to whether the rent for January and February 2008 had been paid, as a result of which housing benefit was suspended pending enquiry;
(k) knowing that the tenancy was coming to an end and still not trusting the landlady to refund the deposit, the appellant refused to pay the rent (or make the equivalent payment for use and occupation) due on 10 March and 10 April 2008;
(l) by letter dated 11 April 2008 a free legal advice service, whom the appellant had consulted by telephone, gave him advice in the course of which it recited that he had withheld payments for those two months and it did not suggest that it had been wrong for him to do so;
(m) on 18 April 2008 however the judge in the county court who granted the possession order against the appellant and his wife (and who was not invited also to enter a money judgment against them) informed the appellant that he had been wrong to seek to recover his deposit by withholding the payments due on 10 March and 10 April; and
(n) accordingly, on 29 April 2008, notwithstanding his knowledge that he and his wife were soon to be evicted, the appellant cleared the arrears.
- On 25 April 2008 the appellant and his wife approached Enfield with a view to being accommodated under Part VII of the Act of 1996. They were offered a screening appointment on 6 May and the appellant was asked to complete a "Homelessness Enquiry Form" for consideration at the appointment. On the form he disclosed that he was then aged 63 and that his wife was then aged 61. Asked "Do you or your partner have a mental illness?" and "Do you or your partner have a physical disability?", he answered by ticking the "Yes" box in both cases. Asked to provide details of any medical condition suffered by anyone in the household, he said that on and off he suffered from depression, for which medication had been prescribed, and that, apart from having high blood pressure, his wife had acute back problems and arthritis for which she took medication but that she remained in constant discomfort. The last page of the form resembled a separate form; for example the place for his signature was on the preceding page. On the last page, below an enquiry about ethnicity, there was the following:
"Please tell us if you have a disability.
The Disability Discrimination Act describes a disabled person as anyone 'with a physical or mental impairment which has a substantial and long-term adverse effect upon his or her ability to carry out normal day-to-day activities'."
To that enquiry the appellant ticked the "No" box. Then, when asked to identify his gender, he ticked the "Male" box; so it is possible that, in having said "No", the appellant had been speaking solely about himself rather than about both himself and his wife.
- The screening appointment on 6 May 2008 was positive, with the result that Enfield deemed the appellant and his wife to be applying for accommodation under Part VII of the Act of 1996. To that end, at Enfield's request, they completed a "Homelessness Application Form". They dated it 14 May and their signatures were witnessed by one of Enfield's housing officers. By this form, they made clear that the application was made by them both jointly. They provided information about their health in terms similar to those on the "Homelessness Enquiry Form". The final page of both forms was in identical terms. But the answer given by the appellant and his wife on the second form to the enquiry about disability was entirely different from the appellant's answer on the first form. On the second form they answered the enquiry whether they had a disability by ticking the "Yes" box and, when asked to identify their gender, they ticked both the "Male" box and the "Female" box; so it is possible that they were alleging that they each had a disability within the meaning of the Act of 1995.
- Enfield thereupon sent two copies of a different form, one copy being referable to the appellant and the other to his wife, to their GP for completion and return. By printed words on the front of the form Enfield explained to the GP that the appellant and his wife had applied for accommodation under Part VII. It informed him as follows:
"Within this piece of legislation there is a duty on the Local Authority to make specific provisions for vulnerable applicants.
Your patient has indicated that he/she could be vulnerable by virtue of his/her medical condition.
I would be grateful if you could give details of any health problems/disabilities by answering this questionnaire."
Curiously, although it had drawn the attention of the appellant and his wife to the definition of a disability in s.1(1) of the Act of 1995, Enfield did not, in asking the GP to give details of any disability on their part, draw his attention to the definition.
- The GP promptly completed and returned the copies of the form. In relation to the appellant, the doctor said that he was suffering a depressive reaction to having to cope with a mentally ill son with a history of drug abuse and with a wife who had been drastically affected by the son's problems and who had become very depressed and unable to do anything for herself; that the depressive reaction in the appellant had first been diagnosed in 1995; that he, the doctor, had last seen the appellant in respect of his condition on 6 May 2008; and that the appellant was not on any regular medication and had mainly been treated with psychological support from the practice. In relation to the appellant's wife, the doctor said that she had severe arthritis in her neck, shoulders and hands, an osteoporotic spine with a prolapsed disc and chronic reactive depression, for all of which she took medication. "This lady", he wrote, "is quite disabled with her chronic depression and her physical problems." Enfield did not seek to obtain further medical evidence about the appellant and his wife.
F: THE PROCEEDINGS BEFORE THE JUDGE
- The appellant's appeal to the county court against Enfield's decision on review dated 2 June 2009 was supported by grounds which, while contending that for various reasons there was legal error in the finding that his homelessness was intentional, did not allege that Enfield had reached its determination in breach of any duty owed under s.49A of the Act of 1995. When ordered by a circuit judge to file more concise, amended grounds of appeal, the appellant, in amended grounds dated 1 October 2009, articulated three grounds, of which the first was an alleged breach of s.49A(1). The other two grounds are no longer relevant. Enfield was, and remains, aggrieved at the late insinuation into the appellant's case of an allegation both that it owed him a duty under s.49A and that it was in breach of it.
- Although in the skeleton argument placed on its behalf before the judge Enfield foreshadowed the more extreme submissions made to us pursuant to a respondent's notice that s.49A(1) of the Act of 1995 does not apply to a local authority's duties of inquiry and review under ss.184 and 202 of the Act of 1996, its main contention before him was that there had been nothing in the material placed before it to trigger any duty upon it to investigate whether the appellant had been suffering disability in any relevant respect.
- In his judgment the judge did not expressly refer to s.49A(1) of the Act of 1995. But he accepted as a general principle that local authorities had a duty to ensure that they did not discriminate against persons under a disability. He then addressed the decision of this court in Cramp v. Hastings BC [2005] EWCA Civ 1005, in which Brooke LJ analysed the scope of an appeal to the county court under s.204 of the Act of 1996. The context of his analysis was that the procedures both for review under s.202 and for appeal therefrom to the county court under s.204 had been introduced by the Act of 1996; and that prior thereto the only means of challenge to a local authority's refusal to accommodate under the earlier homelessness legislation had been an application to the High Court for judicial review. In a well-known dictum Brooke LJ said, at [14]:
"Given the full-scale nature of the review [under s.202], a court whose powers are limited to considering points of law should now be even more hesitant than the High Court was encouraged to be at the time of R v. R.B. Kensington & Chelsea ex p Bayani (1990) 22 HLR 406 if the appellant's ground of appeal relates to a matter which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered."
- The approach of HHJ Mitchell to Brooke LJ's dictum was equivocal. On the one hand he observed that in the light of anti-discrimination legislation such as the Act of 1995, as amended, it might need to be revisited. On the other hand he purported to apply it. Having set out the dictum, he said "in my judgment that is the situation that has arisen here", by which he clearly meant that the reviewing officer had not been invited to consider any disability on the part of the appellant nor had it been obvious that she should consider it. He proceeded to suggest that the claim to disability by the appellant and his wife in the Homelessness Application Form, made more than a year prior to the review, was not an invitation to consider disability. And, far from its being obvious that the reviewing officer should consider disability, the judge made a positive finding that the appellant was not disabled within the meaning of s.1(1) of the Act of 1995. He based this conclusion on what he took to be the effect of the doctor's report to Enfield and on the fact that the appellant had been able to write letters to Enfield and to instruct solicitors to represent him in connection both with the review under s.202 and with the appeal under s.204.
- If Brooke LJ's dictum in the case of Cramp remains good law, the judge certainly had to address the obviousness of any need to consider disability but, as Mr Rutledge concedes, he went far too far in finding that the appellant was not disabled. First, the judge's function was not to find facts. Second, the whole issue arose from the fact that, rightly or wrongly, Enfield had not seen fit to collect any significant amount of information relevant to whether the appellant was disabled, with the result that the picture before the judge was too sketchy to enable a finding to be made. Third, it is dangerous to assess whether a person is disabled by reference to what he is able to do without consideration of what he may be unable to do: see para. 8 of section B of the guidance issued under s.3 of the Act of 1995.
G: DISCUSSION AND CONCLUSION
- Mr Rutledge contends that the duty under s.49A(1) of the Act of 1995 – in particular (under (d)) to have due regard to the need to take steps to take account of the disability of any disabled person – did not apply to Enfield's determination whether the homelessness of the appellant and his wife was intentional. He makes three alternative submissions as to why it did not apply; and it would be appropriately courteous to him to describe his submissions as bold.
- Mr Rutledge submits, first, that the duty under s.49A(1) applies only to the general formulation of policy on the part of a public authority and not to its determination of individual cases. Under s.49D of the Act the Secretary of State has power, by regulations, to impose on a public authority such duties as he considers appropriate for ensuring the better performance of its duty under s.49A. Mr Rutledge points to the fact that the regulations made thereunder, namely the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005, SI 2005/2966, require a public authority to publish a Disability Equality Scheme which must explain how it intends to fulfil its duty under s.49A. He also cites the commentary on s.49A(1) in Cross on Local Government, 16th ed., para 8A-203, as follows:
"This is a positive duty, building in disability equality at the beginning of the process, rather than making adjustments at the end. Its aim is to bring about a shift from a legal framework that relies on individual disabled people complaining about discrimination to one in which "the public sector becomes a proactive agent of change". Public bodies, including local authorities, have to consider the needs of disabled persons when planning their services. The amendments to the 1995 Act do not create new individual rights."
- Mr Rutledge's first submission is clearly wrong. "The duty in s.49A applies both when the local authority is drawing up its criteria and when it applies them in an individual case, both of those being an aspect of carrying out its functions": per Black J in R (JL) v. Islington LBC [2009] EWHC 458 (Admin), [2009] 2 FLR 515, at [114]. There is no scope for depriving the word "functions" of much of its normal meaning. There would, for example, be no need for s.49C(3)(a) of the Act of 1995 to exclude the application of s.49A(1)(d) from acts done in connection with recruitment to the armed forces if the section did not apply in principle to individual decisions. Of course public bodies must factor their duty under s.49A(1) into the planning of their services; and it may well be that the section does not create new individual rights. The part of it with which we are concerned is designed to secure the brighter illumination of a person's disability so that, to the extent that it bears upon his rights under other laws, it attracts a full appraisal.
- Mr Rutledge submits, second, that Part VII of the Act of 1996 addresses the rights and needs of the disabled so comprehensively that there is no room for introduction into the scheme for making provision for the homeless of further protection for the disabled such as is exemplified by s.49A(1) of the Act of 1995. In this regard he refers to three areas of Part VII, namely the provisions by which disability may affect determinations first of priority need (s.189(1)(c)), second of the intentionality of the homelessness (the "in good faith" provision in s.191(2), set out in [11] above, as interpreted in the guidance issued under s.182(1), at para. 11.17(iii)) and third of the suitability of accommodation (as interpreted in the guidance, at para. 17.5).
- Mr Rutledge's second submission is clearly wrong. For disability to play its rightful part in determinations made by public authorities (including under those areas of Part VII to which Mr Rutledge refers) there must (so Parliament clearly considered when enacting s.49A(1)) be a culture of greater awareness of the existence and legal consequences of disability, including of the fact that a disabled person may not be adept at proclaiming his disability. The six specified aspects of the duty in s.49A(1) complement the duties of local authorities under Part VII. Thus it is that, in the guidance issued under s.182(1) of the Act of 1996, upon which Mr Rutledge relies, the terms of s.49A are set out, in effect verbatim, in para. 11 of the Introduction.
- Mr Rutledge submits, third, that, in its determinations under Part VII, a local authority does not carry out "functions" within the meaning of s.49A(1) until, if at all, it reaches the stage of discharging a duty (or exercising a power) to secure that accommodation is available for a person's occupation. I have foreshadowed his submission at [10] above. It depends primarily upon the fact that it is only at that stage that the authority exercises what are defined in s.205(2) as "housing functions under this Part"; and let us also notice for good measure the heading of s.205, namely "Discharge of functions: introductory".
- Mr Rutledge's third submission is clearly wrong. When, if at all, an authority reaches the stage of securing that accommodation is available to a person, it is not unreasonable to describe its function as a "housing" function. But it does not follow that, in the discharge of its prior duties (in particular of inquiry under s.184 and of review under s.202), the authority is not carrying out a function. The obvious fact that it then also carries out functions is recognised, for example, by the terms of s.182(1): see [12] above.
- I therefore have no hesitation in concluding that the duty in s.49A(1) of the Act of 1995 applies to local authorities in carrying out their functions – all of their functions – under Part VII of the Act of 1996. Although others of the five aspects of the duty set out in the subsection could be relevant to the exercise of those functions (Ms Monaghan, for example, refers in this regard to the aspect specified at (a), namely the need to eliminate such discrimination as is unlawful under the Act), I am clear that the substantial effect of my conclusion is in relation to the aspect specified at (d), namely that, in making determinations under Part VII in the areas in which a person's disability could be of relevance, a local authority shall "have due regard to … the need to take steps to take account of disabled persons' disabilities". As indicated in [27] above, Mr Rutledge himself identifies three such areas in particular: the priority of need, the intentionality of homelessness and the suitability of accommodation.
- It was in July 2005 that Brooke LJ articulated his well-known dictum in the case of Cramp, set out in [21] above. It was in December 2006 that s.49A came into force. It follows from my conclusion that his dictum now requires qualification. In circumstances in which a reviewing officer under s.202 (or indeed the initial decision-maker under s.184) is not invited to consider an alleged disability, it would be wrong, in the light of s,49A(1), to say that he should consider disability only if it is obvious. On the contrary. He needs to have due regard to the need for him to take steps to take account of it.
- But the law does not require that in every case decision-makers under s.184 and s.202 must take (active) steps to inquire into whether the person to be subject to the decision is disabled and, if so, is disabled in a way relevant to the decision. That would be absurd. What, then, is the extent of their duty under s.49A(1)(d)? No doubt the aspect of the duty under s.49A(1) specified at (d) would have been easier to understand if it had been formulated as "to take due steps to take account of disabled persons' disabilities …". "Due" means "appropriate in all the circumstances" (see R (Baker) v. Secretary of State for Communities and Local Government [2008] EWCA Civ 141, per Dyson LJ at [31]) so the simple task would have been to survey all the circumstances and then to ask what steps it would be appropriate to take in the light of them. Instead, however, the aspect of the duty specified at (d) is to "have due regard to … the need to take" such steps. In R (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) the Divisional Court of the Queen's Bench Division (Scott Baker and Aikens LJJ), at [84], described the phraseology of s.49A(1)(d) as "convoluted". The court helpfully proceeded, at [90] to [96], to identify six general principles referable to the duty to have "due regard" in all six of the aspects specified in the subsection, including, second, that it demanded "a conscious approach" and, third, that it should be performed "in substance, with rigour and with an open mind".
- For practical purposes, however, I see little difference between a duty to "take due steps to take account" and the duty under s.49(A)(1)(d) to "have due regard to … the need to take steps to take account". If steps are not taken in circumstances in which it would have been appropriate for them to be taken, i.e. in which they would have been due, I cannot see how the decision-maker can successfully claim to have had due regard to the need to take them.
- In my view, therefore, the reviewing officer was in breach of her duty under s.49(A)(1)(d) if she failed to take due steps to take account of a disability on the part of the appellant. In the context of her duty of review under s.202 of the Act of 1996 I would refine the question as follows: did she fail to make further inquiry in relation to some such feature of the evidence presented to her as raised a real possibility that the appellant was disabled in a sense relevant to whether he acted "deliberately" within the meaning of subsection (1) of s.191 of the Act of 1996 and, in particular, to whether he acted "in good faith" within the meaning of subsection (2) thereof?
- In my view the answer to that question is that she did so fail and that, accordingly, she was in breach of her duty under s.49A(1)(d). There were curious features about the history of non-payment of rent, which I have summarised in [14] above and which founded the decision that the homelessness of the appellant and his wife was intentional. It was far from being a paradigm example of wilful or reckless non-payment. The non-payment seems to have been precipitated by concern on the part of the appellant that the landlady would refuse to return his deposit. Twice he sought legal advice, presumably because he wished to act in accordance with the law; and twice he ultimately paid rent which, in sums equivalent to his deposit, he had wrongfully withheld. But to her survey of the appellant's unusual history of payment of rent, not easily to be explained, the reviewing officer needed to add both the report of the GP that, for at least 13 years, the appellant had been suffering a depressive illness and the appellant's own claim on the second form that he was subject to a disability within the meaning of s.1(1) of the Act of 1995. In the circumstances, and irrespective of its validity, the appellant's claim must have been to mental, rather than to physical, impairment; and the fact that on the first form he had denied having a disability provided more an example of puzzling inconsistency than any substantial foundation for ignoring the claim on the second form. Taken together, these features of the evidence raised a real possibility that the appellant's acts and omissions in relation to the payment of rent were affected by mental impairment relevant to whether they were "in good faith" within the meaning of s.191(2) of the Act of 1996 or, for some other reason, not "deliberate" within the meaning of s.191(1). It is possible, perhaps even probable, that the judge's instinct, namely that the appellant had no relevant disability, was correct. We will never know. But in the circumstances the law required the reviewing officer (and, for that matter, the initial decision-maker) to take steps to take account of the appellant's disability, i.e. to make further inquiries into whether it existed and if so whether it was relevant to the decision under s.191. Those further inquiries she never made.
- So I would allow this second appeal; would set aside the judge's dismissal of the first appeal; and would provide in lieu that the first appeal be allowed and that the decision on the review dated 2 June 2009 be quashed. In the circumstances, however, it is clearly inappropriate to direct that the review be conducted again. Nor (albeit assuming, contrary to the submission of Mr Rutledge, that we have power to grant one on appeal from an order only of a county court made under s.204 of the Act of 1995) is there any need for us to grant an actual declaration that the duty under s.49A(1) applies to the exercise of the functions by local authorities under Part VII. Were my colleagues to agree with my suggested orders, our ratio decidendi would be that s.49A(1) so applies (or, to be pedantic, applies at any rate to the local authority's functions of inquiry under s.184 and of review under s.202 of the Act of 1996) and so our ruling would achieve binding status without the need for its incorporation in a declaration.
Lord Justice Longmore:
- I agree.
Lord Justice Mummery:
- I also agree.
