33. There was a good deal of common ground between the parties on the legal issues:

i) The relevant duty of inquiry to which the Council was subject, whether under section 184 of the 1996 Act or under general principles of public law, is an obligation to take reasonable steps to inform itself of matters relevant to the carrying out of its tasks of assessing Ms Wilson’s application under section 193 of the 1996 Act and of doing so in a manner compatible with its equality duty under section 149 of the 2010 Act.ii) There is a considerable body of authority on the scope of the duty of inquiry under general public law. Although we were not taken to it by the parties, a good example in the context of fulfilment of housing duties under the 1996 Act and in line with the parties’ common position is London Borough of Newham v Khatun [2004] EWCA Civ 55; [2005] QB 37, at para. [35] per Laws LJ: ‘… it is for the decision-maker and not the court, subject … to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such’. See also Cramp v Hastings BC [2005] HLR 48, at [12], which was drawn to our attention, repeating and endorsing guidance to the same effect given in R v Kensington and Chelsea LBC ex p Bayani(1990) 22 HLR 406 at 409, per Neill LJ, who in turn cited the relevant passage in the speech of Lord Brightman in R v Hillingdon LBC ex p Puhlhofer [1986] AC 484 at 518: ‘… Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely’.iii) Also, as Brooke LJ said in Cramp at [14], a court should be hesitant to intervene upon review in a housing appeal ‘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.’iv) The impact of the public sector equality duty now contained in section 149 of the 2010 Act (as formerly set out in section 49A of the Disability Discrimination Act 1995) upon this general approach was explained by Wilson LJ in Pieretti v Enfield London Borough Council. Section 49A came into force shortly after judgment was given in Cramp. As Wilson LJ held, in a judgment with which the other members of the court agreed, that provision was intended to introduce a culture of greater awareness of the existence and legal consequences of disability (para [28]) and this means that Brooke LJ’s dictum in Cramp at [14], set out above, now requires qualification as follows:‘… In circumstances in which a reviewing officer under s202 (or indeed the initial decision-maker under s184) 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’ (para. [32]).As Wilson LJ explained at [35], in the context of satisfying the duty of review under section 202 of the 1996 Act, the relevant question has now become:‘did [the reviewer] 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 the assessment to be made on the review]?’In the present case, the assessment to be made on the review was whether the Thornton House flat offered to Ms Wilson was suitable accommodation within the meaning of section 206 of the 1996 Act.v) It is agreed that the question whether the evidence presented raises a ‘real possibility’ that any applicant for housing assistance is disabled is to be assessed by looking to see whether the review officer subjectively considers that such a ‘real possibility’ arises or acts in a Wednesbury irrational way in concluding that it does not. In my view this is the correct approach.

34. Applying these principles to the facts of this case, in my judgment there was no error of approach on the part of Mr Kennelly in conducting the review on behalf of the Council or in the conclusions he came to.

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38. Mr Carter sought to suggest that a combination of the information provided by Ms Wilson in the Homeless Decision Review Form and in the telephone interview on 10 October ought to have raised in Mr Kennelly’s mind that there was a ‘real possibility’ (to use Wilson LJ’s language) that Romareo had a disability for the purposes of the 2010 Act. I do not agree. By the time Mr Kennelly took the final decision on 7 November, he had gone through a process of inquiry which allowed him rationally to decide that, whatever might have been the position at the start of his investigation, there was no real possibility at the end of it, on the information available, that either child had a disability for the purposes of the 2010 Act. In the absence of any indication that Ms Wilson thought that any issue of such gravity had arisen as to need her to address it by seeking any professional advice or diagnosis, Mr Kennelly could rationally assess the position to be one where the children’s fear of heights was within the normal spectrum and not indicative of any possibility that they had a disability within the meaning set out in the 2010 Act.