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Disability discrimination defences

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For the importance of the Disability Discrimination Act 1995 in anti-social behaviour cases click here.

Failure to take account of disability

Possession still ordered

Barnsley Metropolitan Borough Council v Norton

Summary

Even though a local authority landlord was in breach of its duty under s49A of the Disability Discrimination Act 1995 to take account of a disabled person's disabilities that did not prevent a possession order being made.

Facts

A possession order was made against a caretaker and his family, which included a disabled daughter, because the landlord required the accommodation for a new caretaker. On the appeal it was agreed that the family had no property law defence to the claim for possession. The daughter had cerebral palsy and was disabled within the meaning of the Disability Discrimination Act 1995. The basis of the appeal was that the council in seeking possession was in breach of s49A of the 1995 Act, which requires every public authority in carrying out its functions to have due regard to:
    "the need to take steps to take account of disabled persons' disabilities, even where that involves treating disable persons more favourably than other persons"
Decision

The council was in breach of s49A because it had failed to have regard to the daughter's disability. However, that did not mean that it was not entitled to possession of the property in question. The council could fulfill its duty in another way, by providing alternative accommodation.

Citation

Lloyd LJ at para 34:
    "Mr Read submitted that the possession order should be set aside and the possession proceedings dismissed. I can see no proper basis for such an order. Even though, on the basis on which I proceed, the Council was in breach of its duty before the proceedings were started, it would be open to it to remedy that breach by giving proper consideration to the question at any later stage, including now in the light of our decision. What is needed is for the Council to give proper consideration to the factors which are relevant under section 49A(1)(d), above all to the need for suitable accommodation to be found for Sam, her parents and her baby. We were told that an application has now been made for assistance under Part 7, though only as recently as the week before the hearing of the appeal. In practical terms the Council will have to offer reasonably suitable alternative accommodation to the Norton family, and the Norton family must accept that it will have to move when suitable alternative accommodation is made available. One side-effect of the relatively active debate between Counsel and the court in the course of the hearing was that it will have become clear that what is needed is that both sides should address, in a collaborative way, the need for suitable alternative accommodation to be made available, sooner rather than later. As mentioned earlier, the Council can decide whether, and if so when, the possession order is to be enforced, and its decision in that respect is also one in taking which it is under the section 49A(1)(d) duty, or rather, now, the equivalent duty under the Equality Act, section 149."

And Carnwarth LJ at paras 45 and 46:
    "The judge was entitled to take the common sense view that, on the issue directly before him, namely the possession of the school house, there was only one possible answer, in view of the school's pressing need to replace its care-taker. The only other issue was what provision was to be made thereafter for the family. He understandably did not see it as part of his functions to police the performance of the authority's separate duties towards the vulnerable homeless under the housing legislation. He was satisfied on the evidence that:
      "…particularly having regard to Samantha's pregnancy this family will receive a high degree of priority".
    In my view the issues in this case were and are straightforward. Once it was decided that there was no valid defence to possession, and the need for the school's need for possession was compelling, there was no reason to delay a possession order. The judge was entitled to trust the authority to carry out is duties under the housing legislation. Lloyd LJ has referred to Lord Neuberger's advice to leave such questions "to the good sense and experience of judges sitting in the County Court." This in my view was such a case. Applying a practical approach the judge was entitled to find that consideration of Sam's disability would not have made any difference to the authority's decision to seek possession."


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