ON APPEAL FROM BARNSLEY COUNTY COURT
HIS HONOUR JUDGE SWANSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE LLOYD
| BARNSLEY METROPOLITAN BOROUGH COUNCIL
|- and -
|(1) DARREN NORTON
(2) LOUISE NORTON
(3) SAMANTHA NORTON
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Mr Adam Fullwood (instructed by Borough Secretary's Department) for the Respondent
Hearing date: 25 May 2011
Crown Copyright ©
Lord Justice Lloyd:
"(1) Every public authority shall in carrying out its functions have due regard to …
(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"
"These proceedings are not brought under Part 7 but assuming its general applicability, I note that in his judgment Lord Justice Wilson said at para 33:-
"But the law does not require that in every case decision makers … 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"
The duty must be relevant to the decision to be made and the level of relevance itself will vary In this case the local authority felt a pressing need to free the School House so that a new caretaker could take up his duties Samantha's disability at this point was less relevant than it would be when considering an application for housing under the homelessness provisions I do not consider that the action of the local authority was illegal"
"I therefore have no hesitation in concluding that the duty in section 49A(1) of the Act of 1995 applies to local authorities in carrying out their functions – all of their functions – under Part 7 of the Act of 1996 Although others of the five aspects of the duty set out in the subsection could be relevant to the exercise of those functions (Ms Monaghan, for example, refers in this regard to the aspect specified at (a), namely the need to eliminate such discrimination as is unlawful under the Act), I am clear that the substantial effect of my conclusion is in relation to the aspect specified at (d), namely that, in making determinations under Part 7 in the areas in which a person's disability could be of relevance, a local authority shall "have due regard to … the need to take steps to take account of disabled persons' disabilities" As indicated in  above, Mr Rutledge himself identifies three such areas in particular: the priority of need, the intentionality of homelessness and the suitability of accommodation"
"Mr Rutledge's first submission is clearly wrong "The duty in section 49A applies both when the local authority is drawing upits criteria and when it applies them in an individual case, both of those being an aspect of carrying out its functions": per Black J in R (JL) v Islington LBC  EWHC 458 (Admin) at  There is no scope for depriving the word "functions" of much of its normal meaning There would, for example, be no need for section 49C(3)(a) of the Act of 1995 to exclude the application of section 49A(1)(d) from acts done in connection with recruitment to the armed forces if the section did not apply in principle to individual decisions Of course public bodies must factor their duty under section 49A(1) into the planning of their services;and it may well be that the section does not create new individual rights The part of it with which we are concerned is designed to secure the brighter illumination of a person's disability so that, to the extent that it bears upon his rights under other laws, it attracts a full appraisal"
"Samantha is not so disabled that she cannot be safely moved to another property The Defendant and his family live in a jurisdiction where the state seeks to assist homeless persons and evidence was given that particularly having regard to Samantha's pregnancy this family will receive a high degree of priority"
"Sixthly, the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue 'in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty', and that 'the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases' seem to us well made"
"As in many situations, that is best left to the good sense and experience of judges sitting in the county court"
Lord Justice Carnwath
"…particularly having regard to Samantha's pregnancy this family will receive a high degree of priority"
Lord Justice Maurice Kay