ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE MITCHELL
LOWER COURT NO: 9ED03225
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE WILSON
| MICHAEL PIERETTI
|- and -
|LONDON BOROUGH OF ENFIELD
Mr Kelvin Rutledge and Miss Siân Davies (instructed by The Borough Solicitor) appeared for the Respondent.
Hearing date: 24 June 2010
Crown Copyright ©
Lord Justice Wilson:
(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.
B: THE ACT OF 1995
"(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.
"(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.
C: PART VII OF THE ACT OF 1996
D: INTENTIONAL HOMELESSNESS UNDER PART VII
"(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.
E: THE FACTS
(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.
"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.
"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.
F: THE PROCEEDINGS BEFORE THE JUDGE
"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."
G: DISCUSSION AND CONCLUSION
"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."
Lord Justice Longmore:
Lord Justice Mummery: