Barnsley Metropolitan Borough Council v Norton & Ors

This appeal is brought against an order for possession dated 17th December 2010, made by His Honour Judge Swanson in the Barnsley County Court. The Defendant, now Appellants, are Mr Darren Norton, his wife Mrs Louise Norton and their daughter Miss Samantha Norton, who we were told is known as Sam, and to whom I will refer by that name. Mr Norton was employed by Barnsley Metropolitan Borough Council (the Council) as the caretaker at a Primary School in Carlton in Barnsley. He had a tenancy of the caretaker’s house which he was required to occupy for the purposes of his employment. He lived there with his wife and daughter. The employment started in 1992 and came to an end in November 2009 on the grounds of his misconduct. The Council then sought possession of the house in order that they could accommodate a new caretaker. In the county court there was an issue as to whether he was entitled to security of tenure but that was decided against him and is not challenged on the appeal. There is no issue, at this stage, that the Council is entitled to possession of the house. The appeal does not put forward any private or property law defence to the claim. Rather it amounts to a public law challenge to the decision to bring and continue the proceedings.

There are two grounds of appeal, for which permission was given by Rimer LJ. The first is that the Council was in breach of its duty under section 49A of the Disability Discrimination Act 1995 (the DDA). The second is that to make an order for possession was disproportionate having regard to Article 8 of the European Convention on Human Rights and to the Human Rights Act 1998.

The disability issue arises because Sam was born with cerebral palsy in 1991 and she developed epilepsy as a baby. It is common ground that she suffers from a disability for the purposes of the DDA, though fortunately it seems that she is no longer seriously affected by epilepsy. Her mobility is restricted, as are her learning and cognitive abilities. She receives the highest rate for the care and the mobility components of disability living allowance. The premises are safe for her. When she was very young they were specifically adapted for her in some respects by the Council’s social services department, with rails and grab handles to enable her to manage steps and stairs for example. There was evidence that she has no sense of danger and needs to be accompanied at all times. At the time of the hearing she was pregnant, with the birth expected in March this year. That birth happened in due course so the household now includes a small baby. (We have been told that, very recently, she and the baby’s father have married.) Sam lives and intends to continue to live with her parents together with her child. There was no evidence before the county court of any recent assessment of Sam’s needs as regards accommodation. It was said that she could cope safely with stairs.

Section 49A of the DDA imposed a duty, relevantly, as follows:

“(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.”

As of 5 April 2011 the same duty has been imposed instead by section 149 of the Equality Act 2010: see subsections (1)(b), (3)(b), (4) and (7).

In Pieretti v. Enfield Borough Council [2010] EWCA Civ 1104, [2011] HLR 3, the Court of Appeal rejected an argument that section 49A only imposed a generalised duty as regards the formulation of policy rather than a duty to be implemented in relation to action taken or to be taken by a public authority in particular cases. In that case the point arose because a housing authority’s reviewing officer had failed to take account of the disability of applicants for assistance under Part 7 of the Housing Act 1996 (Part 7). There was material from which it could and should have occurred to the officer that the applicants were disabled and that this was relevant, on the particular facts, to the question of whether they were to be regarded as having become homeless intentionally.

Here the point arises more starkly because there is no doubt that the Council well knew that Sam was disabled, and seriously so. At the time when Mr Norton’s employment had been terminated but before he received a notice to quit he and his wife went to see Ms Jill Barton, a housing adviser employed by the Council. She became aware from this, if she did not already know, that Sam was disabled and that she received the highest rates of disability living allowance, and had severe learning disabilities. Later she was informed that the legal department had decided to take possession proceedings but there is no suggestion in the papers that she was in any way involved in the taking of that decision.

The judge said there was no evidence either way as to whether the individual or individuals making the decision to seek possession positively considered Sam’s disability. From that I take it that the Council did not seek to show that any specific regard had been had to her position under section 49A at the time that the decision to start proceedings was considered and taken. Accordingly the court must proceed on the footing, as the judge did, that the Council did not, in this case, have any regard to the need to take steps to take account of Sam’s disability at that stage.

The judge held that this was of no consequence because, whatever consideration had been given to that factor, the decision must have been to the same effect, namely to seek possession.

Clearly there can be situations to which one or other of the six paragraphs of section 49A(1) may be relevant where it can properly be said that, although no regard was had to the particular factor, it could have made no difference. A point under section 49A on very different facts from the present was raised and dealt with in somewhat that way in London Borough of Brent v. Corcoran [2010] EWCA Civ 774.

The judge went on to explain his conclusion in the present case at paragraph 19 of his judgment as follows, after having referred to the decision in Pieretti:

“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.”

The Council, in a respondent’s notice, makes a more fundamental submission, namely that in taking the decision whether or not, and if so when and how, to bring proceedings for possession, the Council was not subject to the duty under section 49A(1)(d) at all. That argument is based on what Lord Justice Wilson said in paragraph 31 of Pieretti:

“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 [27] above, Mr Rutledge himself identifies three such areas in particular: the priority of need, the intentionality of homelessness and the suitability of accommodation.”

For the Council, Mr Fullwood argued that Sam’s disability could not be of any relevance to the decision whether or not to seek possession of property in a case where the Council had, as it contended, an absolute right to possession and a sound need to obtain the possession, and where, if and when a possession order were made, the position of Sam and her parents would be within the scope of Part 7.

Mr Fullwood pointed out that, in deciding that the duty under section 49A applied to all aspects of a public authority’s functions, Wilson LJ did not decide that it created any new individual right as opposed to holding that it affected a person’s rights under other legislation. That is clear from paragraph 26 of the judgment in Pieretti as follows:

“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 [2009] EWHC 458 (Admin) at [114]. 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.”

In that case the question arose specifically in relation to obligations under Part 7, so it was unnecessary for the court to consider whether the duty under the DDA applied more widely. For my part, it seems to me clear that the duty does apply more widely and that it is not something which has to be considered only when a public authority is exercising functions that bear on the rights of a disabled person under some other specific legislation. In terms, the section is entirely general. It applies to the carrying out of any function of any public authority. On the other hand, it does not necessarily follow that whenever a public authority is considering or exercising any function, whatever it may be and in whatever circumstances, it must give conscious thought to how it might affect a disabled person. It is not necessary for us to decide what is the scope of the circumstances in which the duty would come into play. In the present case it would have been obvious to any person considering whether or not to start possession proceedings, and if so when and in what way and what circumstances, that if a possession order were obtained as a result of those proceedings, Sam’s way of life and wellbeing might be substantially affected by the outcome.

In Pieretti Lord Justice Wilson spoke at paragraphs 33 – 35 of the scope and application of the duty under section 49A. He did so in the context of Part 7. In doing so he drew on the judgments of the Administrative Court in R (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), a case concerned with a general policy, namely the closure of post offices. As he said, at paragraphs 90 – 96 of that judgment the Divisional Court set out a number of factors that were relevant to the duty to have regard under section 49A. Not all of these are equally applicable to the way that the duty operates in relation to a particular set of facts such as those presently under consideration as opposed to the formulation of a general policy. However at paragraph 90 of the judgment in Brown, Aikens LJ pointed out that those in the public authority who have to take decisions which do or might affect disabled people must be made aware of their duty to have due regard to the identified goals, so that an incomplete or erroneous appreciation of the duties will mean that due regard has not been given to them. Secondly, at paragraph 91, he pointed out that the duty to have regard involves a conscious approach and state of mind. Thirdly, at paragraph 92, he made the point that the duty must be exercised in substance, with rigour and with an open mind. At paragraph 95 he made the obvious point that the duty to have regard is a continuing one and at paragraph 96 he pointed out that it is good practice for those exercising public functions in public authorities to keep an adequate record showing that they had actually considered their disability equality duties and addressed relevant questions.

I would reject the primary contention of the Council that the duty did not apply when the decision was taken to commence the proceedings for possession. I do not accept, for reasons already given, that the duty only applies when rights of the disabled person under other legislation are involved. Given that Sam’s position could be critically affected by the Council obtaining an order for possession, it seems to me that the Council was clearly under a duty to have due regard to the need to take steps to take account of her disability, pursuant to the section 49A(1)(d) duty at that time. As indicated at paragraph 33 of the judgment in Pieretti (and as endorsed by Lord Brown of Eaton-under-Heywood in R (Macdonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33 at paragraph 23) due regard means such regard as is appropriate in all the circumstances.

Mr Fullwood’s essential position, whether in support of his more radical submission or his alternative submission, was that the Council, being entitled to possession as a matter of private law and having a good and even a compelling need to obtain possession for the purposes of its other functions, was entitled to take the stance, consciously or not, that the need to see that Sam, with her parents and eventually her child, was properly accommodated once possession was obtained would be satisfactorily dealt with under Part 7. He submitted that the distinct functions of the Council ought to be kept separate for this purpose and that even if section 49A had some relevance to the decision whether to start proceedings, at any rate Part 7 provided the whole answer to the question, because that is the statutory provision which imposes on the local authority duties relevant to the particular case, dealing with the situation in which a person, including in particular a disabled person and a person with a young child, needs to be housed because of being homeless or threatened with homelessness.

In this context it needs to be remembered that, although in a general sense the Norton family was threatened with homelessness as soon as possession proceedings were brought against them, for the purposes of Part 7 a person is threatened with homelessness only if he or she is likely to become homeless within 28 days: see section 175(4) of the 1996 Act. It was for that reason that the homelessness file opened in 2010 was closed in May of that year, although proceedings were under way, because it did not seem likely that they would come to an early conclusion. Thus under Part 7 one has to wait not just for the commencement of proceedings, and not just for the commencement of proceedings to which there is no private law defence, but in effect for the making of the possession order.

Understandably, given the extent and complexity of the duties incumbent on a housing authority and the relatively elaborate and well-developed structure of the obligations under Part 7, a council which is a housing authority may take the view that the issue of homelessness is one which arises and is dealt with within the ambit of Part 7, is therefore dealt with by the homeless persons unit of the local authority and is dealt with them, it is to be hoped reasonably competently, consistently with the resources available, but in strict accordance with the 1996 Act. As Mr Fullwood submitted to us, that requires that the person seeking assistance should apply to the local authority for help, because not all homeless people do want or even need help from the local authority. It requires the local authority to consider the position of the applicant, as to whether he or she is someone in priority need and whether he or she became homeless intentionally, among other factors. It requires offers of accommodation to be made, depending on the result of the initial enquiry and investigation, and the offer of such accommodation must be of suitable accommodation. The range of accommodation available to a housing authority may be limited and there is sometimes a substantial excess of demand over supply. In particular, where the person needing accommodation has special needs, as Sam plainly has, it may be the more difficult to find accommodation that is suitable for those needs; to do so may take more rather than less time. It may involve a relatively lengthy search and it might require the adaptation of a particular property once it has been identified and found to be available and otherwise suitable.

It is understandable that Mr Read for the appellants should have expressed to us the concern of the Norton family as being that, if they are left to the ordinary operation of Part 7 to provide them with accommodation once the possession order takes effect, it may take longer, perhaps a good deal longer, than the short time that might ordinarily be available at that point to find accommodation that really is sensibly to be regarded as suitable for Sam and her needs and circumstances. If that were to prove to be the case, it would of course be unsatisfactory for the family to have to live in temporary accommodation that is less than suitable, if that might have serious adverse effects on the welfare of Sam and her child.

However, in the discharge of its duties under Part 7 the Council is subject to the duty under section 49A(1)(d), and now under section 149 of the 2010 Act, as is shown by the decision in Pieretti itself. In any event, since the Council is aware that Sam has special needs because of her disability, it will have to take those into account in deciding whether accommodation to be offered to her is suitable, and it may need to undertake an up-to-date assessment of those needs for this purpose. Because the accommodation in which Sam is currently housed belongs to the Council, the Council will have control over the process of enforcing any possession order, and any decision to enforce that order would itself be subject to the duty now imposed by section 149.

I note that, when the judge came to deal with the article 8 argument, at paragraph 23 of his judgment, he said this:

“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.”

The first of those sentences is plainly correct, and the contrary is not suggested. As to the second, the question is whether it was sufficient for the Council to leave the question of Sam’s accommodation to be dealt with under Part 7 in due course, so that even if due regard was had to the factors required under section 49A(1)(d) it would make no difference at the outset of, or during the course of, the proceedings.

We do not know exactly how the point was put to the judge below, but in paragraph 36 of the Appellants’ skeleton argument, it is said that they acknowledged that the court was likely not to find that Mr Norton had security of tenure, and that the Council would want possession in order to house the new caretaker. In the light of that the line taken was that the judge should suspend the execution of any possession order 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.

If the Council’s position had been that it did not have regard to the section 49A duty when commencing the proceedings because, for example, it needed to establish its right to possession first, which was not in the event accepted by Mr Norton, and that once that was accepted or proved it would then give consideration to the implications of Sam’s disability before pressing for an order for possession, that could have been a proper and rational position to take, so long as it did give such consideration at the later stage. As was accepted on both sides it is not the case that a public authority’s obligations in this sort of respect are necessarily to be discharged by a decision once and for all at the outset: compare Central Bedfordshire Council v. Taylor [2009] EWCA Civ 613, [2010] 1 WLR 446.

But that was not the Council’s position. It seeks to establish that it does not need to address the implications of possession proceedings for an occupant known to be severely disabled, on the basis that if it gets a possession order the disability will fall to be addressed if and when the occupants apply under Part 7. Mr Fullwood went so far as to submit that it was difficult to see how the Council could be under a duty to consider Sam’s disabilities in respect of functions which were not being performed and which had not yet therefore fallen for consideration by the Council, namely the functions under Part 7.

As I have said, I reject the submission that functions in section 49A(1) are limited to functions under some particular aspect of a public authority’s operations. The decision to seek possession of the school house was an exercise of a function of the public authority. It seems to me that knowing, as the Council did, that if successful this could pose potentially serious problems for Sam, who had been safely housed at the school house with the help of adaptations provided by the Council itself, it was incumbent on the Council to have regard to the need to take steps to take account of her disability. To what conclusion this would lead the Council is not for the court to say and of course the need for the premises to be used by a new caretaker was highly relevant.

In support of that approach, Mr Read referred us to paragraph 64 of Lord Neuberger’s judgment in Manchester City Council v Pinnock [2010] UKSC 45, [2010] 3 W.L.R. 1441, which was said about article 8 but seems to me to be relevant also by analogy to section 49A of the DDA:

“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.”

For his part Mr Fullwood referred us, by contrast, to paragraphs 52 and 54 of the same speech. I accept that, as he submitted, there is a high burden on a Defendant who relies on article 8 as a defence to a claim for possession. Nevertheless, in relation to a disabled person for whose benefit the section 49A(1)(d) duty has to be undertaken, in the present sort of context, the obvious question is where that person is going to live after the possession order to be sought has been obtained and has taken effect. Of course, Part 7 is particularly relevant, as it would not always be for a defendant to possession proceedings, because Sam would be a person in priority need for the purposes of Part 7. But it does not follow that section 49A(1)(d) allows the Council to leave the question of her future accommodation and provision over to be coped with under Part 7 in the end, if it comes to that.

For these reasons it seems to me that it was a breach of duty for the Council to fail to address the duty under section 49A(1)(d) before commencing the proceedings, or at any stage during the proceedings.

On that basis I would hold that the first of the grounds of appeal is made out. In those circumstances I do not find it necessary to deal with the second ground of appeal concerned with Article 8 of the ECHR. Mr Read accepted that if he was unable to succeed under the DDA, his claim under Article 8 was seriously difficult to address and if he was able to succeed under the DDA he did not need his separate Article 8 claim.

However, the question then arises as to what should be the consequence of the Council having failed, hitherto, to have due regard to its duty under section 49A(1)(d), a duty to which it is still subject in carrying out its functions, as they may have an impact on Sam.

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.

A possible course would be to set aside the possession order, so as to leave it to the Council to take up the proceedings again in the county court once it had given proper consideration to its duty under the section. That course, too, seems to me inappropriate. The Council has a sound need for the property and in terms of private law an unqualified right to obtain possession. It must now discharge its duties to Sam under Part 7, or for that matter those under Part 6 of the 1996 Act as regards long- term housing as opposed to the temporary arrangements that tend to be typical under Part 7. 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 seems to me that the practical problem needs to be resolved by proper consideration being given by the Council, with the cooperation of the Norton family, to the question where they are to be accommodated in the future, whether under Part 7 or under Part 6. Sam’s circumstances are such that she is likely to qualify for high priority treatment under either of these statutory regimes, and I would regard it as wrong to assume that the Council will not have proper regard to the extent and nature of her disability and her other needs in assessing what accommodation would be suitable for her, and in making an offer to her accordingly.

If the Council’s failure to comply with its duties under section 49A(1)(d) had been challenged by an application for judicial review rather than by way of a defence to the possession claim, 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. In Wandsworth Borough Council v Winder [1985] AC 461, in which the availability of a public law defence in private law proceedings was established by the House of Lords, the decision at issue had been taken once and for all, namely to increase the level of the rent payable by council tenants, including the Defendant. Here, by contrast, the Council’s duty to Sam is a continuing duty, and the time when a possession order has been made is in practice the most significant stage at which the duty needs to be discharged properly. Before that, it is a question of looking to the future, with an imperative for the Council of establishing that the house could be made available for a new caretaker. Once an order for possession has been made it is up to the Council to deal with its functions of providing suitable accommodation for Sam and her family (being entitled to it, whether under Part 7 or Part 6 of the 1996 Act) and to do so in proper accordance with the applicable duties under the Housing Act as well as under (now) the Equality Act. In practice I do not see that the position could or should be different under article 8.

I quoted above, at paragraph [29], words of Lord Neuberger in Manchester City Council v Pinnock, relied on by Mr Read for the Appellants, in which he referred to the possible relevance of alternative accommodation. In the present case, alternative accommodation is directly relevant, but the Council is under a duty to provide such accommodation under Part 7, and possibly also under Part 6. At paragraph 57 of his judgment in the same case, Lord Neuberger also said this, about the working out of the implications of article 8:

“As in many situations, that is best left to the good sense and experience of judges sitting in the county court.”

My analysis of the present case is not the same as that of the judge in the court below but the submissions to us have, no doubt, been differently articulated. However, my reasoning and analysis leads me to the same conclusion as that of the judge, namely that it was right to make an order for possession, and to leave it to the Council to deal properly with the logically consequent issue of Sam’s need for new accommodation.

At the conclusion of the hearing the court urged the parties not to wait, during the period for which judgment was reserved, before engaging with the question of suitable replacement accommodation for Sam and the Norton family. We have been provided with a witness statement from the Council which indicates the steps which have been taken since then, from which we learn that Part 6 of the Housing Act 1996 has been under discussion as well as Part 7. In that context, steps have been taken recently to identify Sam’s particular needs. I am glad to learn of that, though I do not in any way rely on it in reaching my decision.

For the reasons given above, although I accept that the first ground of appeal has been made out, I would dismiss the appeal because I consider that it was appropriate, in the circumstances, for the judge to make the possession order that he did. It is now up to the Council to discharge properly its duties under the Housing Act 1996, having proper regard also to its duty in relation to Sam under section 149 of the Equality Act 2010.

On the issue of statutory construction, I agree that the Act is intended to apply whenever an authority is taking decisions which may have adverse effects on people within its scope. The decision to seek possession of Sam’s home was such a decision. The authority ought to have been advised of its duties under the Act. To that extent their decision to seek possession was defective in law. Nothing in what follows should detract from the importance of authorities’ being alive to the duties under the Act, and to the risks of default.

On the other hand, the content of the duty should not be overstated. It required the authority to have “due regard”: in other words, such regard as was “appropriate in the circumstances” (Pieretti para 33). Further, it did not necessarily require them to take any immediate action to secure suitable alternative accommodation. Their “due regard” was to be to “the need to take steps to take account of (her) disabilities”. As I read it, it was enough that they should have in mind the need to take such steps at the appropriate time. They were also entitled to take account of the practicalities.

They would have been aware that, in a contested case such as this, the need for suitable alternative accommodation would not arise for some time (in this case, 8 months elapsed between the issue of the claim and the possession order); and that, when it did, a different set of responsibilities, also subject to the Disability Act, would fall on them under the other legislation. They would also have been aware that the timing of actual possession, even following a court order, would be within their own control as landlord. There would therefore have been no reason to think that the date fixed by the order itself would be an obstacle to securing what was needed.

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.

I entirely agree with the judgment of Lloyd LJ.