Barnsley MBC v Norton  EWCA Civ 834, handed down on 21/07/11.
This was another case where Public Law afforded a public landlord’s occupier a defence in County Court possession proceedings, where until recently she would have not had one at all. The Appellants (the 3 members of the Norton family) had submitted that the Council’s decision as a public authority to recover possession was an improper exercise of its powers on conventional public law grounds, under the familiar “gateway (b)” route explained by Lord Hope in Kay v Lambeth LBC, Leeds CC v Price  2 AC 465, at . They said that this was because its decision-making process has failed to have regard to daughter Sam Norton’s disability, though it was clear that the Respondent Council had a genuinely pressing need to recover the property they lived in.
In Pieretti v Enfield LBC  EWCA Civ 1104,  HLR 3, it was held that the carrying out of inquiries and making decisions under Pt 7 of the Housing Act 1996, are “functions” of authorities for the purposes of the Public Sector Equality Duty (“PSED”) in s.49A(1) of the DDA 1995 – now re-enacted as s.149 of the Equality Act 2010. Accordingly, by s.49A(1)(d) of the 1995 Act, an authority must have due regard to the need to take steps to take account of a disabled person’s disabilities when making a decision under Pt 7 of the 1996 Act.
Mr Norton was a primary school caretaker in Barnsley, living with his family in “tied accommodation” in the school grounds. He was sacked, and the Council brought summary possession proceedings in order to be able to install a new caretaker. The Nortons defended the possession claim – to which they would otherwise have had no defence – on the grounds that their 18 year old daughter Sam had relatively mild cerebral palsy and a moderate learning disability, although she was substantially mobile. The Council knew of her situation, and had even adapted the house for her. By the date of trial, she was also pregnant.
Despite this, there was nothing to show that the Council had ever considered her position as a disabled person, or the consequences of eviction on her, at any time prior to or after the issue of proceedings. Having raised this as a defence, the Nortons appealed against the decision of the Circuit Judge to grant the Council a possession order. They had argued that the proceedings be dismissed, or that execution should be suspended pending the making of appropriate enquiries and taking steps in order to find suitable accommodation into which Sam could move once the order took effect.
HHJ Swanson had decided that whatever consideration the Council had taken of Sam’s disability would have made no difference to its decision to seek possession; faced with the need to recover possession, her disability was less relevant that it would be once she applied as homeless; and that Part 7 of the Housing Act 1996 would ensure proper consideration would be given to her in due course, after Pieretti.
The majority of the Court of Appeal (Lloyd LJ, who gave the lead judgment, and Maurice Kay LJ) had no difficulty in finding that the Council were exercising a “function” in bringing these proceedings, and that the PSED applied even though that function was not one for which statute expressly empowered it or required it to act (unlike in Pieretti). (The Court was much less concerned with a second “pure proportionality” ground of appeal, under Article 8). Although the appeal against the possession order went on to fail, the Court found that the ground of appeal was made out, and the Council had failed to comply with the PSED. At  Lloyd LJ said
The decision of this appeal may serve to reinforce that which the courts have been saying for some time, calling on public authorities to face up to their obligations under section 49A and now section 149 of the 2010 Act.
It did not follow that this interpretation of the PSED allowed the Council to leave the question of Sam’s future accommodation and provision to be coped with under Part 7. But the very fact that the PSED was a continuing duty meant that the Council still had the chance actively to consider its discharge towards Sam. It would have control over the process of enforcing the possession order, and the Court noted that any decision to enforce that order would itself be subject to the duty now imposed by section 149. Had the proceedings been brought by way of judicial review,
“it would have been open to the Administrative Court to conclude that, despite a proven past breach, the Council’s decisions already taken should not be set aside, if the court considered that the Council could now be relied on to exercise its relevant future functions properly, with (of course) the sanction - if it were not to do so - of further proceedings whether by way of judicial review or under (if relevant) Part 7 itself. By analogy, given that a breach of a public law duty is relied on by way of defence in the present case, it seems to me that it is open to the court in this situation to take the view that, if the decision would not have been set aside on an application for judicial review, it should not provide a basis for a defence to the proceedings for possession.”
(Lloyd LJ, at [36-37]).
The Court of Appeal fully recognised that the Council needed to install a new residential caretaker quickly. It decided, for very different reasons to the trial judge, that it was right to make an order for possession, but that the Council remained subject to the PSED. By implication, further challenge could be brought (presumably to halt the execution of a warrant, or to challenge the offer of alternative accommodation) either under Part 7 of the 1996 Act or via the free-standing PSED, were Barnsley not to comply with that duty in discharge of its further statutory duties to Sam.
Carnwath LJ’s reasons for dismissing the appeal were different, although he accepted that the decision to bring the proceedings was defective in law because of the failure to have regard to the PSED criteria. He felt it important not to overstate the extent of the PSED, and that the Council were entitled to take account of the practicalities: there would have been no reason to think that the date fixed by the order itself would be an obstacle to securing what was needed in terms of compliance with the PSED (at ). The trial judge was entitled to trust the Council in carrying out its duties.
In summary, the reasoning of the majority in this decision tells local authorities that the PSED needs to be properly observed at every decision-making stage in the possession and rehousing process. It also shows the strength of that duty – as a continuing duty – and that a PSED defence may validly be brought to such a claim. But subject to a continuing duty in a process that had not yet ended, the Council had a chance to make up for past failings by future actions. In Pieretti that process had purportedly ended with the rejection of the homelessness application, requiring the Court to intervene in order to put right what would otherwise be unremediable: but here the process continues, affording the Council that opportunity (or, some may prefer, “letting them off the hook”). It was that which led to the appeal’s dismissal, though the Nortons will feel that they have proved their point. It is also worth pondering what the judgment might have been had the landlord been a different public body to the housing authority.
© Simon Read