COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
Judge Armitage QC (1) and (2)
District Judge Jones (1)
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE JACOB
SIR MARTIN NOURSE
| COUNCIL OF THE CITY OF MANCHESTER
|- and -
|SHARON ROMANO (1)
|COUNCIL OF THE CITY OF MANCHESTER
|- and -
|YVONNE SAMARI (2)
Andrew Arden QC, Michael Lemmy (1) & Robert Darbyshire (2) (instructed by Chief Executive's Department, Manchester City Council) for the Respondents
Jill Brown (instructed by the D.R.C.'s Legal Services Department) for the Disability Rights Commission
Hearing dates : 18th & 19th May 2004
Crown Copyright ©
|2.||Ms Romano: the facts||3|
|3.||Ms Samari: the facts||11|
|4.||Reasonableness and the 1995 Act||18|
|5.||The 1995 Act||22|
|5.1||The meaning of "disability"||23|
|5.2||The meaning of "discrimination"||37|
|5.3||Sections 22 and 24 of the Act||48|
|5.4||Justification: section 24(2)-(3)||56|
|5.5||Disability discrimination: How Part III of the Act is enforced||61|
|6.||The relationship between the 1995 Act and the housing legislation||65|
|7.1||The medical evidence||76|
|7.2||The judge's findings||86|
|7.3||The submissions of the parties||87|
|8.2||The judge's findings||99|
|8.3||The submissions of the parties||101|
|8.4||Conclusions on the medical evidence||104|
Lord Justice Brooke : This is the judgment of the court.
"the tenant or a person residing in or visiting the dwelling house
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality "
and where it is reasonable to make the order.
In Ms Romano's case the judge dismissed an appeal from the earlier order by District Judge Jones to which we refer in paragraph 6 below. In Ms Samari's case he made an order for possession as the trial judge.
2. Ms Romano: The facts
3. Ms Samari: the facts
4. Reasonableness and the 1995 Act
(i) The 1995 Act furnished its own code for justified eviction which required a higher threshold than merely to say that the degree of misbehaviour was significant and there was not much prospect of it abating;
(ii) Since the eviction was unlawful in terms of the 1995 Act, the court was being invited to exercise its discretion by way of promotion of unlawful conduct;
(iii) Furthermore, the limitations on interference with the defendant's right to respect for her home were set out in the 1995 Act and the court's powers accorded by the Housing Act 1988 had to be read in a manner that was compatible with her Convention rights.
5. The 1995 Act
5.1 The meaning of "disability"
"1. (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.
(2) In this Act 'disabled person' means a person who has a disability."
(a) a tendency to set fires,
(b) a tendency to steal,
(c) a tendency to physical or sexual abuse of other persons,
(d) exhibitionism, and
In addition an addiction (which includes a dependency) to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the Act unless the addiction was originally the result of administration of medically prescribed drugs or other medical treatment (regs 2 and 3).
"(a) it has lasted at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected."
(b) manual dexterity;
(c) physical co-ordination;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger."
On the present appeals it was common ground that only items (g) and (h) were of relevance, and that the disability of each appellant, if established, was of long-term effect.
11. It is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment.
13. Mental impairment includes a wide range of impairments relating to mental functioning, including what are often known as learning disabilities (formerly known as mental handicap).
14. A clinically well-recognised illness is a mental illness which is recognised by a respected body of medical opinion. This would include those specifically mentioned in publications such as the World Health Organisation's Worldwide Classification of Diseases.
A1. The requirement that an adverse effect be substantial reflects the general understanding of 'disability' as a limitation going beyond the normal differences in ability which may exist among people. A 'substantial' effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A 'substantial' effect is one which is more than 'minor' or 'trivial'.
Para A12 refers to paragraph 6 of Schedule 1 (see para 28 above) and explains that its principles are to be applied 'even if the measures result in the effects being completely under control or not at all apparent'.
Paragraph B6 relates to much the same matter:
B6. If medical or other treatment is likely to cure an impairment, so that recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those effects. However, as Section A describes, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, then the treatment is to be ignored and the effect is to be regarded as likely to recur.
On these appeals, on the question whether the appellants' 'impairments' had an adverse effect on their ability to carry out normal day-to-day activities, the following parts of this section were said to be of particular relevance:
C5. In many cases an impairment will adversely affect the person's ability to carry out a range of normal day-to-day activities and it will be obvious that the overall adverse effect is substantial or the effect on at least one normal day-to-day activity is substantial.
C7. Where a person has a mental illness such as depression, account should be taken of whether, although that person has the physical ability to perform a task, he or she is, in practice, unable to sustain an activity over a reasonable period.
C20 and C21 provide guidance on the two elements in Schedule 1, para 4(1) (see para 27 above) which are at the forefront of these appeals.
Memory or ability to concentrate, learn or understand
C20. Account should be taken of the person's ability to remember, organise his/her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than is normal.
Examples: It would be reasonable to regard as having a substantial adverse effect:
Inability to adapt after a reasonable period to minor change in work routine ..
Perception of the risk of physical danger
C21 This includes both the underestimation and overestimation of physical danger, including danger to well-being. Account should be taken, for example, of whether the person is inclined to neglect basic functions such as eating, drinking, sleeping, keeping warm or personal hygiene; reckless behaviour which puts the person or others at risk; or excessive avoidance behaviour without a good cause.
"22 (2). The tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. With this legislation, tribunals are given explicit assistance in two forms, which should detract from the need to adopt a loose construction of the language:
- Guidance issued on 25th July 1996 under s 3 of the Act by the Secretary of State (Statutory Instrument No 1996/1996) with statutory effect from 31 July 1996; and
- Code of Practice issued on 25 July 1996 but with statutory effect from 2 December 1996.
23. The EAT repeats what it has said on a previous occasion, namely that, at least during the early period of the Act's operation, reference should always be made, explicitly, to any relevant provision of the Guidance or Code which has been taken into account in arriving at its Decision."
"40 On the assumption that the impairment and adverse effect conditions have been fulfilled, the tribunal must consider whether the adverse effect is substantial. This is a word which is potentially ambiguous. 'Substantial' might mean 'very large' or it might mean 'more than minor or trivial'. Reference to the Guide shows that the word has been used in the latter sense: see paragraph A1.
41 The tribunal may, where the applicant still claims to be suffering from the same degree of impairment as at the time of the events complained of, take into account how the applicant appears to the tribunal to 'manage', although tribunals will be slow to regard a person's capabilities in the relatively strange adversarial environment as an entirely reliable guide to the level of ability to perform normal day-to-day activities.
42 The tribunal will wish to examine how the applicant's abilities had actually been affected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant's abilities to carry out normal day-to-day activities is clearly more than trivial". (Emphasis in the original)
"Further, in our judgment, the employment tribunal erred in its approach, as evidenced in the last sentence of paragraph 24 of its decision. It is not material to a decision as to whether a person is suffering a disability within the meaning of the Act, to consider how the impairment from which they are suffering was caused. What is material is to ascertain whether the disability from which they are suffering at the material time is a disability within the meaning of the Act or whether, where it is relevant as in this case, it is an impairment which is excluded by reason of the Regulations from being treated as such a disability."
"Accordingly, in general there will be three or possibly four routes to establishing the existence of 'mental impairment' within the [1995 Act], namely:
(i) proof of a mental illness specifically mentioned as such in the World Health Organisation's International Classification of Diseases
(ii) proof of a mental illness specifically mentioned as such in a publication 'such as' that classification, presumably therefore referring to some other classification of very wide professional acceptance;
(iii) proof by other means of a medical illness recognised by a respected body of medical opinion."
For the purposes of this judgment it is unnecessary to describe the possible fourth route, which Lindsay J said was likely to be rarely if ever invoked.
5.2 The meaning of "discrimination"
"For the purposes of [this part/section 22 etc] [an employer/a person] discriminates against a disabled person if
(a) For a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply;
(b) He cannot show that the treatment in question is justified."
" a person discriminates against a woman if
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man."
And in section 1(1) of the Race Relations Act 1976
"A person discriminates against another if
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons."
It will be seen that instead of the simple language "on the grounds of her sex" or "on racial grounds" the draftsman of the 1995 Act adopted the phrase "for a reason which relates to the disabled person's disability".
"A contrary interpretation is submitted on behalf of Mr Clark. His argument is that 'that reason' refers only to the first three words of the paragraph 'for a reason'. The causal link between the reason for the treatment and the disability is not the reason for the treatment. It is not included in the reason for the treatment. The expression 'which relates to the disability' are words added not to identify or amplify the reason, but to specify a link between the reason for the treatment and his disability which enables the disabled person (as opposed to an able-bodied person) to complain of his treatment. That link is irrelevant to the question whether the treatment of the disabled person is for a reason which does not or would not apply to others. On this interpretation, the others to whom 'that reason' would not apply are persons who would be capable of carrying out the main functions of their job. Those are the 'others' proposed as the proper comparators. This comparison leads to the conclusion that Mr Clark has been treated less favourably; he was dismissed for the reason that he could not perform the main functions of his job, whereas a person capable of performing the main functions of his job would not be dismissed."
"But, as already indicated, the 1995 Act adopts a significantly different approach to the protection of disabled persons against less favourable treatment in employment. The definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the 'reason' for the treatment of the disabled employee and the comparison to be made is with the treatment of 'others to whom that reason does not or would not apply'. The 'others' with whom comparison is to be made are not specifically required to be in the same, or not materially different, circumstances: they only have to be persons 'to whom that reason does not or would not apply'."
"the express requirement of the 1975 Act (s 5(3)) and the 1976 Act (s 3(4)) that, when a comparison of the cases of persons of different sex or persons of different racial groups falls to be made, the comparison must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
"The result of this approach is that the reason would not apply to others even if their circumstances are different from those of the disabled person. The persons who are performing the main functions of their jobs are 'others' to whom the reason for dismissal of the disabled person (ie inability to perform those functions) would not apply.
In the context of the special sense in which 'discrimination' is defined in s 5 of the 1995 Act it is more probable that Parliament meant 'that reason' to refer only to the facts constituting the reason for the treatment, and not to include within that reason the added requirement of a causal link with disability: that is more properly regarded as the cause of the reason for the treatment than as in itself a reason for the treatment. This interpretation avoids the difficulties which would be encountered in many cases in seeking to identify what the appeal tribunal referred to as 'the characteristics of the hypothetical comparator'. It would avoid the kind of problems which the English (and Scottish) courts and the tribunals encountered in their futile attempts to find and identify the characteristics of a hypothetical non-pregnant male comparator for a pregnant woman in sex discrimination cases before the decision of the European Court of Justice in Webb v EMO Air Cargo (UK) Ltd : see Webb (No 2)  IRLR 645. This interpretation is also consistent with the emphasis on whether the less favourable treatment of the disabled person is shown to be justified. That defence is not available in cases of direct discrimination under the other discrimination Acts."
"On the Novacold interpretation of the comparison to be made, the blind person with his guide dog would not be treated less favourably than the relevant comparator, ie 'others', to whom that reason would not apply, would be sighted persons who had their dogs with them. There could not therefore be any, let alone prima facie, discrimination. But the Minister specifically stated that this would be a prima facie case of disability discrimination, ie less favourable treatment, unless justified. It could only be a case of less favourable treatment and therefore a prima facie case of discrimination, if the comparators are 'others' without dogs: 'that reason' for refusing access to refreshment in the cafe would not apply to 'others' without dogs." (para 69)
"The same point can be made on the example given in the Code of Practice on Rights of Access issued by the Secretary of State at para 2.12:
'A waiter asks a disabled customer to leave the restaurant because she has difficulty eating as a result of her disability. He serves other customers who have no difficulty eating. The waiter has therefore treated her less favourably than other customers. The treatment was for a reason related to her disability her difficulty when eating. And the reason for her less favourable treatment did not apply to other customers. If the waiter could not justify the less favourable treatment, he would have discriminated unlawfully.'
It is clear from this example that the comparison to be made is with other diners who have no difficulty in eating and are served by the waiter, and not with other diners who may be asked to leave because they also have difficulty eating, but for a non-disability reason, eg because the food served up by the waiter is disgusting. This interpretation of s 20(1) provides support for Mr Clark's interpretation of s 5(1). The reason for his dismissal would not apply to others who are able to perform the main functions of their jobs; he has been treated less favourably than those others. He was dismissed for not being able to perform the main functions of his job. The 'others' would not be dismissed for that reason."
5.3 Sections 22 and 24 of the 1995 Act
"(3) It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises
(a) in the way he permits the disabled person to make use of any benefits or facilities;
(b) by refusing or deliberately omitting to permit the disabled person to make use of any benefits or facilities; or
(c) by evicting the disabled person, or subjecting him to any other detriment."
"(2) For the purposes of this section, treatment is justified only if
(a) in A's opinion, one or more of the conditions mentioned in subsection (3) are satisfied; and
(b) it is reasonable, in all the circumstances of the case, for him to hold that opinion.
(3) The conditions are that
(a) in any case, the treatment is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);
(4) Regulations may make provision, for purposes of this section, as to circumstances in which
(a) it is reasonable for a person to hold the opinion mentioned in subsection 2(a);
(b) it is not reasonable for a person to hold that opinion.
(5) Regulations may make provision, for purposes of this section, as to circumstances (other than those mentioned in subsection (3)) in which treatment is to be taken to be justified."
No relevant regulations were drawn to our attention.
"3.13 Service providers seeking to avoid discrimination, therefore, should instruct their staff that their obligations under the Act extend to everyone who falls within the definition of 'disability' and not just to those who appear to be disabled. They may also decide that it would be prudent to instruct their staff not to attempt to make a fine judgment as to whether a particular individual falls within the statutory definition, but that they should focus instead on meeting the needs of each customer."
"9.26 It is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises by evicting the disabled person. This prohibition does not prevent the eviction of a disabled tenant where the law allows it, for example, where he or she is in arrears of rent or has breached other terms of the tenancy, and where the reason for the eviction is not related to disability. However, in each case, appropriate court action needs to be taken to obtain an eviction order."
And then this example is given:
"A tenant of a house has recently been diagnosed with AIDS. His landlord gives him a week's notice to quit the house, although he is not in arrears of rent or otherwise in breach of his tenancy. This is likely to be unlawful."
5.4 Justification: section 24(2) (3)
"The general approach to justification
7.8 The test of justification is twofold; what did the service provider believe? (a subjective test) and was that belief reasonably held? (an objective test). A service provider does not have to be an expert on disability, but it should take into account all the circumstances, including any information which is available, any advice which it would be reasonable to seek, and the opinion of the disabled person. The lawfulness of what a service provider does or fails to do will be judged by what it knew (or could reasonably have known), what it did and why it did it at the time of the alleged discriminatory act.
7.9 In some instances, it will not be clear whether any of the justifications apply. It may be shown subsequently that a service provider was mistaken in its opinion in a particular case. Coming to an incorrect conclusion does not necessarily mean that the service provider has discriminated unlawfully against a disabled person. In such cases, a service provider may be able to justify less favourable treatment or failure to make reasonable adjustments if it can show that it was reasonable, in all the circumstances of the case, for it to hold that opinion at the time."
"34 In my opinion, that part of the test requires an objective assessment of all the relevant circumstances. But that, of course, raises a question as to what circumstances are relevant for this purpose; and in particular it raises the question of whether a person in the defender's position is under some sort of obligation to make inquiries of a disabled person before forming any opinion.
35 In considering this aspect of the case, it may be helpful at the outset to make clear that 'the relevant circumstances' do not extend to include all of the facts which may be established at a much later stage, for example during proof in a litigation. Counsel for the pursuer did not suggest that the reasonableness of an opinion should be tested, ex post facto as it were, by objective reference to all of the facts which might come to light at a later stage, and I am of opinion that counsel was correct to adopt that position. However, as I have noted earlier, he founded strongly on the submission that the defender should have engaged in dialogue with the pursuer so as to obtain more relevant facts than were immediately available to him. The submission bore, of course, to be founded on the Code of Practice, and in particular on the passage which I have already quoted from paragraph 1.7.
36 In my opinion, counsel's submission on this point is crucial if the pursuer is to succeed because, like the sheriff, I consider that the opinion reached by the defender, on the facts as then known to him, was a reasonable one for him to reach.
37 The question then is whether the defender should have endeavoured to obtain more information before finalising his opinion. The Act itself does not impose any such duty, but I accept that the Code contains a suggestion that some inquiry may be desirable. In my opinion, however, the need for further inquiry will depend very much on the facts and circumstances of a particular case. "
5.5 Disability discrimination: How Part III of the Act is enforced
"(1) A claim by any person that another person
(a) has discriminated against him in a way which is unlawful under this Part
may be made the subject of civil proceedings in the same way as any other claim in tort
(2) For the avoidance of doubt it is hereby declared that damages in respect of discrimination in a way which is unlawful under this Part may include compensation for injury to feelings whether or not they include compensation under any other head.
(3) Proceedings in England and Wales shall be brought only in a county court.
(5) The remedies available in such proceedings are those which are available in the High Court "
"5 (1) Except as provided by section 25 no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under Part III.
(2) Sub-paragraph (1) does not prevent the making of an application for judicial review."
6. The relationship between the 1995 Act and the housing legislation
"Health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity".
"These incidents have been continuous over the last few years I am going to work tired because my sleep has been disturbed. This makes my work difficult as I have explained. I am a Driving Examiner and need to be fully aware of what is going on around me I have been to the courts to obtain some peace and rest The stress this has caused me in my marriage and in my work is unmeasurable. These latest incidents have taken place since the last court hearing which makes me wonder what exactly does one have to do or where does one go from here."
(1) Did the landlord hold the opinion that it was necessary to serve a notice seeking possession and/or to bring possession proceedings in order that the health of A (an identified person or persons) would not be put at risk?
(2) Was that opinion objectively justified?
For the meaning of the word "health" in this context see paragraph 69 above. Trivial risks to a person's health should be disregarded.
7. Ms Romano
7.1 The medical evidence
"This 38 year old lady has been suffering from depression of mood associated with suicidal thoughts, auditory pseudo hallucinations, persecutory ideas, poor appetite, weight loss, lassitude, difficulty getting off to sleep, early morning wakening, poor concentration and memory. This constellation of symptoms represents a moderate to severe depressive episode in keeping with the World Health Organisation (WHO, 1992) and American Psychiatric Association (APA, 1994) guidelines. She has had previous episodes of depression and therefore satisfies the criteria for a diagnosis of a Recurrent Depressive Disorder. In this setting of depressed and irritable mood she has misinterpreted other people's intentions and behaved in a hostile manner."
He concluded that she was suffering from a recurrent depressive disorder, of a type recognised by the ICD-10 and DSM IV classifications of mental disease.
7.2 The judge's findings
7.3 The submissions of the parties
8. Ms Samari
8.1 Medical Evidence
8.2 The judge's findings
8.3 The submissions of the parties
"I can feel when a mental health episode comes on and I know that when I do have an episode I can get very violent. Sometimes I cannot recall what I have done during the episode and the episodes scare me and I try to keep myself to myself because I know what I can do. Such an episode generally starts with having bad thoughts, feeling panicky and feeling angry. I am trying very hard to combat my mental health which includes taking medication but I try and keep myself to myself because I know that if an episode occurs there is very little I can do to stop it from happening."
8.4 Conclusions on the medical evidence
"I am at the end of my tether and I feel that I can no longer cope with the behaviour of the defendant and her family. I am sick of my children having to listen to their abusive language. The comments that the defendant makes to my family and myself are very insulting and hurtful. I feel very vulnerable and worried for the safety of my family and myself."
" [T]he complainant is suffering from serious depression which she is now on medication for. [Her] depression is a direct result of the behaviour of Yvonne Samari. As the landlord's representative I have considered the health and safety of Sharon Jones and believe it is justified for legal action to continue."
9. Concluding comments
"A service provider may have treated a disabled person less favourably for a reason related to their disability even if it did not know the person was disabled."
"A pub employee orders a customer who is lying prone on a bench seat to leave the premises because he assumes she has had too much to drink. However, the customer is lying down as a result of a disability rather than alcoholic consumption. The refusal of further service [which we take it means further service of drink] is for 'a reason which relates to the disabled person's disability'. This will be unlawful unless the service provider is able to show that the treatment in question is justified as defined by the Act."