5.49Pieretti v Enfield LBC [2010] EWCA Civ 1104, (2010) 13 CCLR 650
The disability equality duty applied to all local authority functions, including under sections 184 and 202 of the Housing Act 1996
Facts: Enfield found that Mr and Mrs Pieretti had become intentionally homeless on account of their failure to pay rent. However, Enfield had been presented with evidence that Mr and Mrs Pierretti had been significantly depressed. Mr and Mrs Pieretti contended that Enfield had breached section 49A of the Disability Discrimination Act 1995, by failing to enquire into whether their ability to pay rent had been undermined by their illness.
Judgment: the Court of Appeal (Mummery, Longmore and Wilson LJJ) held that Enfield had been in breach of the disability equality duty by failing to make further enquiry into a feature of the evidence that raised a real possibility that Mr and Mrs Pieretti were disabled in a sense relevant to whether they could fairly be adjudged to have become homeless intentionally:
33. But the law does not require that in every case decision-makers under s184 and s202 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 s49A(1)(d)? No doubt the aspect of the duty under s49A(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 s49A(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’.
34. For practical purposes, however, I see little difference between a duty to ‘take due steps to take account’ and the duty under s49A(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, ie 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.
35. In my view, therefore, the reviewing officer was in breach of her duty under s49A(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 s202 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 s191 of the Act of 1996 and, in particular, to whether he acted ‘in good faith’ within the meaning of subsection (2) thereof?
Comment: in other specific homelessness contexts, it has been held that the similar duty (to treat the best interests of children as a primary consideration, under section 11(2) of the Children Act 2004) did not apply:
Huzrat v Hounslow LBC;
1[2013] EWCA Civ 1865.Mohamoud v Kensington & Chelsea RLBC.
2[2015] EWCA Civ 789.