Lalli v Spirita Housing Ltd

This is an appeal against the decision of His Honour Judge Barrie, sitting in the Nottingham County Court, when he dismissed a raft of complaints that the defendant, a registered sheltered housing association, had acted unlawfully in various ways under the Race Relations Act 1975 and the Disability Discrimination Act 1995 (“the 1995 Act”). Only some of his conclusions are the subject of challenge in this appeal.

The background is as follows. The appellant, Mr Lalli (whom I shall call Mr Singh since that is how he prefers to be known), is an assured tenant who resides at Dover Court in Derby, which is sheltered accommodation. There are 38 residents who must be either over 60 years of age or in receipt of disability living allowance in order to live there. They have the assistance of a warden.

The appellant is 57 and of Indian origin. His first language is Punjabi. He suffered a brain injury following an assault in 1996. He now has short term memory and learning difficulties. It is common ground that he has a mental impairment which constitutes a disability within the meaning of section 1 of the Disability Discrimination Act. Hence the reason why he is living in this accommodation. He has been at Dover Court since March 2001.

Early in his tenancy there was some friction between him and other tenants and in October 2002 an investigation concluded that he had been subject to some racially abusive comments. He had in turn admitted to making various threatening comments to some other residents. Thereafter there was evidence from the warden that the appellant had caused some distress to other residents, particularly when he was affected by alcohol.

The incident which triggered the events giving rise to these claims occurred on 5 March 2009. The appellant is alleged to have made offensive comments and threatened certain residents who were at the time in the communal lounge. He denied this and alleged that he had been told by these fellow residents that they did not want black people there, or words to that effect. A report was made of the incident by the warden who sided with the other residents. He noted that it had become apparent over the weeks that Mr Singh had been attending social nights when drunk, that his alcoholic state caused people to ignore him and this, in turn, prompted him to become angry and abusive and to call everyone racist.

The incident of 5 March itself was more serious than on earlier occasions because the abuse was particularly offensive. The warden suggested in his report that the appellant should be kept away from the community room for the present until the incident had been fully investigated by management. This led to a letter dated 9 March from Ms Gordon, who is described as the respondent’s Supported Housing Officer, in which she arranged to meet the appellant on Friday 13 March, and in the meantime she asked him to refrain from entering the communal lounge when social events were happening until a full investigation had been undertaken.

There was a further incident on 10 March in the communal lounge. The appellant contended, although this is disputed, that he went there to ask someone to read the letter to him as he could not understand what it said because he was unable to read English. This explanation for his presence was apparently disputed by those present, who said that it was plain that he already knew what was in the letter and had again used threatening language.

The meeting with Ms Gordon took place on 13 March when the two incidents were discussed. The judge was critical of the respondent for not having a note of the meeting, but he accepted that Mr Singh was unable to provide a satisfactory explanation to head off injunction proceedings. The judge was satisfied that the decision to seek the injunction had not been lightly taken.

On 18 March the respondents obtained an interim anti-social behaviour injunction forbidding Mr Singh from harassing, threatening or abusing fellow residents at Dover Court and excluding him from the communal lounge between the hours of 4pm to 9pm.. He was served with court papers on 20 March and Ms Gordon met him again on that day to explain the injunction. The judge found that Ms Gordon herself was not aware of his cognitive impairment or his reading problems. However, he also found that Mr Singh had a good comprehension of spoken English and understood what was said to him at both those meetings.

Shortly after being served with the injunction papers, Mr Singh approached the Derby Racial Equality Council for assistance. Thereafter there were a number of court hearings when the injunction was renewed, namely on 5 May, 26 June, 6 August, 28 September and 9 November. Mr Singh was represented for the first time on 6 August when the hearing was adjourned and he was given permission to provide expert evidence. The purpose was to identify the nature and extent of his disability including whether he had the capacity to understand the legal proceedings, and in particular, the full implications of the injunction.

The medical evidence consisted of a report from Mr Nigel Schofield, a neuro-psychologist and chartered clinical psychologist. He noted that the appellant’s GP had long described Mr Singh as having had learning difficulties and being functionally illiterate since the head injury more than ten years earlier. He noted that “the literacy issue is an unusual one following a traumatic brain injury but I am unable to confirm or refute Mr Singh’s description of its onset based on psychometric assessment now”. He also noted that an additional factor here was lengthy use of alcohol which may have prolonged or exacerbated such cognitive problems as may have initially been caused by brain injury and which may otherwise have partly or fully remitted. He concluded as follows:

“5.2

Most importantly, current psychometric assessment has confirmed that Mr Singh’s cognitive abilities are in the impaired range overall, with generalised cognitive impairment or difficulty across all cognitive domains. As such, this would need to be taken into account by anyone dealing with him particularly in legal or financial matters, as not only may he have difficulty understanding verbal information (most especially if it is written in English), but would then additionally have difficulty in taking appropriate action, or remembering that he needed to do so, without external assistance or facilitation. I do believe that he thus qualifies as a disabled person in terms of the Disability Discrimination Act 2005 as he has demonstrable ‘permanent mental impairment.

5.3

Whilst Mr Singh seems able to understand the nature of the allegations against him (which he disputes), and that he has had an injunction against him, any breaching of which would lead to further legal action against him, I am uncertain that he does so at a sufficiently detailed level for him to participate in the legal proceedings for which this report was sought, without third party assistance and support over and above his legal team. It would also be extremely difficult for him to cope with examination or cross-examination in a court situation.”

And then in response to specific questions, he said this:

“6.1

Mr Singh appears to be suffering from generalised mental impairment of neurological origin, possibly partially as a result of brain injury, but significantly also related to prolonged alcohol abuse, which now may be the major underpinning variable for most of his deficits.

6.2

These problems include difficulty in learning and retaining information, difficulties managing his everyday affairs, and problems with reading and writing. These latter are such that he is functionally illiterate. He also details an array of physical problems related to defined physical conditions as detailed in 3.4 above that impact upon his ability to do physically demanding domestic tasks. I am not medically qualified to comment further upon these physical symptoms.”

Following this report the Official Solicitor took over responsibility for the proceedings. Subsequently, after understanding the full nature of his disability, the respondents dropped the injunction proceedings.

By a claim form dated 17 September 2009, which was in fact a month before the medical report had been received, the appellant contended that he had been discriminated against by the respondent on a number of grounds. It was alleged that they had issued and/or pursued the injunctive proceedings in a manner which contravened certain provisions of the Race Relations Act and the 1995 Act; that they had failed to investigate his complaints of race discrimination, contrary to certain provisions of the Race Relations Act; that they had not addressed certain harassment allegations to which he said he had been subjected; that they had not warned him that they would pursue the injunction proceedings; and that they had not followed their own procedures for dealing with anti-social behaviour.

The specific claims made under the 1995 Act were directed solely at the injunction proceedings. It was said that the defendant had failed to make reasonable adjustments to cater for the appellant’s disability when sending the letter of 9 March and in issuing and pursuing injunctive proceedings generally. The particulars of claim themselves appear to have limited the complaint to an allegation that by their conduct in initiating and pursuing the proceedings in the way they did, this amounted to the adoption of a practice, policy or procedure which disadvantaged the claimant by making it impossible or unreasonably difficult for him to use the communal lounge for certain hours of the day. It does not appear to have been alleged that the actual experience of the litigation was itself a detriment giving rise to a separate ground of discrimination.

The judge rejected all the claims. The grounds of appeal engage only some of his conclusions and are directed almost exclusively at the alleged failure to make reasonable adjustments. There is one ground which relates to a claim of indirect discrimination under the Race Relations Act. I deal with that at the very end of this judgment.

The Disability Discrimination Act is designed to prevent discrimination against disabled persons. It applies in a wide range of fields. Two in particular are engaged in this appeal, namely discrimination in relation to the provision of services, and discrimination in the exercise of a public function. Parliament has not only made it unlawful directly or indirectly to discriminate against the disabled, but in addition, there are circumstances where it will be necessary for a body to make reasonable adjustments to ensure that the disabled are not adversely affected as a result of their disability. This may involve treating the disabled more favourably than other persons in the same situation in order to ensure proper equality of treatment. This duty to make reasonable adjustments is cast in different ways in each of the three areas under consideration in this appeal. The precise statutory formulation is, of course, material when determining whether or not there has been any infringement. (The legislation has been simplified by the Equality Act 2010 but it was not in force at the material time.)

The definition of “disability” is found in section 1 of the 1995 Act as follows:

“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.”

There must be a causal link between the physical or mental impairment and the adverse effect on the ability to carry out normal day to day activities.

The two forms of discrimination principally relied upon are found in Part III of the 1995 Act. The first is premised on the assumption that the respondent was acting as a provider of services within the Act, namely the provision of the communal lounge. The second relies on the obligations imposed on the respondent as a public authority. This aspect of the case, as it was developed before us, did not focus on the denial of access to the lounge itself. The contention, put in broad terms, was that as a result of his disability, the claimant was subject to a detriment when he was made a party to the injunction proceedings which had a particularly adverse effect upon him as a disabled person, and that by making a reasonable adjustment, this could have been avoided. There was a third possible basis of liability which was not apparently developed below nor before us, but it was briefly touched upon by Mr Stephenson, counsel for the appellant. This relates to the defendant’s status as a controller and manager of premises. I briefly deal with this possible way of putting the case later in this judgment.

Section 19 of the Act makes it unlawful for a provider of services (which is defined to include the provision of goods and facilities) to discriminate against a disabled person. The particular way in which it is alleged that the defendant discriminated here is set out in section 19(1)(b):

…

(b)

in failing to comply with any duty imposed on him by section 21 in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service.”

The section 21 duty referred to in that subsection is a duty in section 21(1) in appropriate cases for the provider of services to make reasonable adjustments to remove barriers which hinder or prevent access to the service:

“Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of the service which he provides or is prepared to provide to other members of the public it is his duty to take such steps as it is reasonable in all the circumstances of the case for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect.”

However, section 20(2) incorporates the defence of justification into the concept of unlawful discrimination:

“For the purposes of section 19, a provider of services also discriminates against a disabled person if-

(a)

he fails to comply with a section 21 duty imposed on him in relation to the disabled person; and

(b)

he cannot show that his failure to comply with that duty is justified.

Accordingly, the failure to comply with the section 21 duty to make reasonable adjustments is only unlawful if there is such a failure and it is unjustified.

Section 19 applies to the provision of services whether the provider is in the public or private sector. However, the services themselves must be provided to the public. This is clear from the definition of services in section 19(2)(b):

“For the purposes of this section ..

(b)

a person is “a provider of services” if he is concerned with the provision in the United Kingdom, of services to the public or a section of the public”.

Subsection 19(3)(a) then gives, as an example of services to which section 19 applies,

“access to and use of any place which members of the public are permitted to enter.”

Section 21B on which the claimant also relies, deals with discrimination by a public authority. It is accepted that the respondent housing authority is a public authority within the meaning of the legislation: see R (Weaver) v London Quadrant Housing Trust (Equality and Human Rights Commission intervening) [2010] WLR 363CA.

Subsection 21B(1) is as follows:

“It is unlawful for a public authority to discriminate against a disabled person in carrying out its functions.”

Section 21D then defines what constitutes discrimination within the meaning of section 21B. The relevant provision relied on in this case is section 21D(2)(a) which is as follows:

“For the purpose of section 21B(1) a public authority also discriminates against a disabled person if

(a)

it fails to comply with a duty imposed on it by section 21E in circumstances in which the effect of that failure is to make it (i) impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or

(ii)

unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected, by the carrying out

of a function by the authority, and

(b)

it cannot show that its failure to comply with that duty is justified under sub-section (3)(5) or (7)(c).”

Again, therefore, there is a defence of justification in certain circumstances. The potential heads of justification referred to in subsection 21D(2)(b) include a case where the public authority reasonably holds the opinion that the treatment or non-compliance with the duty is necessary for the protection of the rights and freedoms of other persons.

The duty imposed by section 21E is again a duty to make reasonable adjustments. It is as follows:

“(1)

Sub-section 2 applies where a public authority has a practice, policy or procedure which makes it –

(a)

impossible or unreasonably difficult for the disabled persons to receive any benefit that is or may be conferred, or

(b)

unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected by the carrying out of a function by the authority.

(2)

It is the duty of the authority to take such steps as it is reasonable in all the circumstances of the case for the authority to have to take in order to change the practice, policy or procedure so that it no longer has that effect.”

I confess that I find subsection (1)(b) to be far from elegantly expressed. However, when contrasted with subsection (a) the intention is tolerably clear. Subsection (a) focuses on benefits and subsection (b) on detriments. Where the implementation of a policy or practice would submit anyone to a detriment (an example given in the Access to Rights Code issued in 2006 refers to arresting someone), then if the imposition of the detriment would bear particularly hard on the disabled person (would be “unreasonably adverse”) then the public authority should take reasonable steps to change the policy so that it no longer has that effect. That does not, however, mean that the policy or practice must necessarily be dispensed with altogether with respect to a disabled person because it has an adverse effect. It means that reasonable steps should be taken where possible so as to eliminate such effect as is unreasonably adverse.

The judge, who was sitting with assessors, resolved the conflict of evidence about the events on 5 March 2009 against the appellant. He concluded that the appellant had disturbed a social evening by behaving in an aggressive, threatening and provocative manner, because he had been drinking. He was ignored because of his bad behaviour and became argumentative and offensive. The judge did not, however, resolve the conflict of evidence as to the reason why the appellant had gone into the communal lounge on 10 March.

The judge had to deal principally with allegations of breaches of the Race Relations Act. Only one of these complaints is still pursued on appeal and I deal with it at the end of this judgment. The key conclusions of the judge in relation to the complaints made under the 1995 Act are contained in paragraphs 34 and 35 of the decision, which are as follows:

“34.

Disability discrimination is claimed under ss.21 and 21 D DA first on the ground that the issuing of injunction proceedings was a provision, policy or practice which made it difficult for Mr Singh to receive a benefit or caused him a detriment; and secondly on the ground that writing letters in English failed to make reasonable adjustments for his disability. The disability which Mr Schofield has identified is one of cognitive impairment. Is the inability to read English an aspect of the disability? Mr Schofield does not support, though he cannot exclude, an effect of the head injury but I find that attribution of illiteracy to head injury does not pass the test of probability and I find that Mr Singh simply cannot read English at more than a rudimentary level. Perhaps more important, neither the letter in English nor the manner of pursuing the injunction proceedings made it impossible or unreasonably difficult for Mr Singh to deal with Spirita’s case against him in view of the sources of help that were readily available to him.

35.

It is also contended that the pursuit of the injunction application was a breach of Spirita’s anti-social behaviour policy, having regard to Mr Singh’s disability, and as direct racial discrimination, because legal action should be a last resort and other forms of rehabilitation or mediation had not been attempted. In my view the seriousness of the incident of 5 March, coupled with the further incident of 10 March, fully justified a decision to seek an injunction. The legal action was not sought so as to evict Mr Singh but only to ensure a reasonable standard of behaviour and to restrict his evening access to the communal lounge. He rarely visited the lounge in any case since most of his social life was based on the Temple. In deciding whether this step was appropriate, Spirita had a duty to its other residents and staff as well as its duty to Mr Singh. The resort to the courts was reasonable in spite of Mr Singh’s disability and did not have anything to do with his race.”

The judge did not specifically identify the different claims under the 1995 Act, but it seems to me that paragraph 34 engages with the public authority argument advanced under section 21B, and paragraph 35 with the service provider argument under section 19 and related provisions.

The grounds have been put under a number of headings. Three of them identify alleged errors of law which it is said permeated the judge’s analysis.

First, it was said that the judge failed to recognise, as he should have done, that the sending of the letter to a man who could not read was itself an unlawful act of discrimination. As I understand it, the contention is that this amounted to an unreasonably adverse experience, to use the statutory language in section 21D(2). The defendant could, and should, have taken reasonable steps to remove that effect by making sure that Mr Singh was told of the accusations against him in person. Ms Gordon herself had acknowledged that this is what she would have done had she realised the extent of Mr Singh’s disability.

Mr Wylie, counsel for the respondent, submits that it could not be an act of disability discrimination because the inability to read was not connected with the impairment and accordingly the obligation to make adjustments was not engaged at all. He submits, in my view correctly, that there can be no duty to make an adjustment for the lack of an ability which is wholly unrelated to the disability. He relies on the fact that the judge held that the expert evidence did not satisfy him on the balance of probabilities that the illiteracy was the product of the head injury (by which I think that the judge meant the impairment).

Mr Stephenson says that this was not a sustainable conclusion in the light of the medical report. I agree with him. As I read Mr Schofield’s report, he is saying that it is unlikely that the brain injury itself caused an inability to read, which suggests – and I think this is essentially what the judge found - that the appellant may have been unable to read even before the accident and for reasons wholly unconnected with it. However, Mr Schofield also found that there is a generalised mental impairment of neurological origin, albeit related more to alcohol abuse than the brain injury, which means that the appellant is functionally illiterate. I interpret this as saying that the position now is that there is a mental impairment which affects Mr Singh’s ability to read. It is well established that the cause of the impairment is irrelevant, even if it is alcoholism which is not itself a disability: see Power v Panasonic UK Ltd. [2003] IRLR 151 (EAT).

In my view, it is immaterial that the appellant would have been unable to read even if he had not been mentally impaired. The test under section 1 is whether the ability to carry out normal day to day activities is affected by the impairment, and the ability to read is now so affected. If, for example, a disability causes me to be unable to drive, which in turn means that I am unable to carry out certain duties under my contract of employment, it will be necessary for the employer to make reasonable adjustments if possible. This is so even if I had not taken my driving test when able to do so, and even though I might have chosen never to take it. I therefore reject the argument that the duty to make an adjustment did not even arise.

It is not denied that the defendant could have taken reasonable steps to communicate other than by letter. However, in my view, there is simply no basis for saying that the decision to communicate at the first instance by letter was an unreasonably adverse experience for Mr Singh. On the contrary, he had requested that he be contacted in that way; the warden’s records recorded that whilst he needed a mentor to read English and Punjabi, he would ask anyone available. Mr Stephenson suggested that no real weight should be placed upon his choice because he was not mentally able to make one. I reject that submission; there is no reason to suppose that he was incapable of saying and meaning that his preferred method of contact was by letter.

Furthermore, as the judge pointed out, there were very good reasons why a letter was a desirable method of communication in a case of this nature (para 25):

“25.

I am not at all sure that Miss Gordon was right to make her concession that with hindsight she should not have sent the letter. There are important advantages to a letter, compared with relying on the spoken word at a meeting or telephone call. A letter is a sign of seriousness. A letter is a permanent record. I have concluded in this case that Mr Singh is not a reliable historian. As an example, Mr Schofield was instructed on the footing (page 186, paragraph 1.2) that the meetings with Miss Gordon of 13 and 20 March did not take place at all. A letter provided a far more reliable basis for Mr Singh to seek help whether from friends at the Temple, from Derby Racial Equality Council nearby (as he had done, page 327, by 2 April) or from solicitors. If the matter had then been dealt with internally there is merit in the suggestion made by Mr Fletcher (page 348) that Mr Singh should be helped by an interpreter or an advocate. In fact however it became a matter for litigation and it was inevitable that Mr Singh would seek independent legal advice, as indeed he did. Possession of the letter will have been helpful in making a start with this.”

Accordingly, in my view the sending of the letter did not place Mr Singh at a material disadvantage or cause him any adverse detriment.

The second ground of appeal asserts that the judge was wrong to treat the fact that Ms Gordon did not know of the appellant’s disability as a potentially relevant consideration. I agree that this is an immaterial consideration since it is not disputed that the defendant as a body did know of his disability. Mr Wylie accepts that the knowledge or otherwise of Ms Gordon is irrelevant, though he says that the observation of the judge about that did not in fact affect the judge’s reasoning on any of the issues advanced in this appeal. I agree with that submission.

The third ground is that the judge failed to have due regard to the appellant’s disability contrary to section 49A of the DDA. This provides, among other matters, that a public authority shall, in carrying out its functions, have regard to “the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons”.

Mr Stephenson accepts that a breach of this provision does not of itself give rise to a cause of action. However, he says that it is potentially relevant to the judge’s analysis of other statutory duties, citing the judgment of Wilson LJ in Pieretti v London Borough of Enfield [20010] EWCA Civ 1104, and that the judge failed to have regard to it. I would accept that Pieretti shows that the duty was engaged when the decision to take proceeding was under consideration. However, the failure specifically to refer to it does not of itself involve any error of law by the judge. I would, however, accept that it would lend support to the proposition that the defendant, as part of its duty to make reasonable adjustments, would be obliged to make reasonable inquiries as to the nature of the disability in order to identify more precisely the nature and extent of any disabilities and what steps might reasonably be taken to minimise or eradicate the adverse consequences. In that context I would reject a submission of Mr Wylie that the observations of Wilson LJ were only material to the particular statutory provisions engaged in that case.

The fourth and principal ground is that the judge erred in failing to find that the defendant had failed in its duty to make reasonable adjustments in its role either as provider of services or as a public authority. I will consider the service provider and public authority aspects of the appeals separately since given the way the appeal was advanced, they raise quite different issues.

The contention is that the respondent had adopted a practice, policy or procedure, namely the decision to institute injunctive proceedings, particularly in the manner in which they were pursued, which made it impossible or unreasonably difficult for the appellant to make use of a service provided by the respondent, namely the right to use the communal lounge. In my judgment, that submission fails for three reasons in particular.

First, although this point was not specifically argued before us, section 19 only applies where the service is provided to the public or a section of the public. I do not see how access to the communal lounge falls into that category; the right of access was limited to the residents of Grove Court and members of the public had no right to go in. I would not finally determine this part of the appeal against Mr Singh on that basis alone, however, since the case was fought on the assumption that the respondent was a service provider with respect to the communal lounge, and we have not given counsel the opportunity to make submissions on the point.

Second, the practice or policy which prevents the appellant from exercising the right of access to the community lounge is not the decision to seek an injunction; rather it is the policy to bar from the lounge (at least at certain times of the day) those who are a nuisance and disturb the peace. The appellant does not contend that he could not stop himself from acting in the unacceptable way he did because of his disability; on the contrary, he simply denied that he had acted in that way. It was not, therefore, disability-related discrimination and no such discrimination is alleged. There is no condition of access which he, as a disabled person, cannot satisfy. There is simply the obligation to behave himself and act reasonably when in the lounge, and the fact that he did not do so had nothing to do with his disability.

To put this point another way, the practice of seeking a court order does not of itself make it either impossible or unreasonably difficult for the appellant to gain access to the lounge. It is simply designed to ensure that there is an effective sanction so that he will comply with the ban imposed by the respondent, a ban which itself was not disability related.

Third, in any event, if and to the extent that it can be said that it was the injunction which made it impossible for him to use the lounge, and that the decision not to pursue proceedings was in principle a reasonable adjustment which the defendant could have taken, the decision not to do so was plainly justified. As the judge noted, the defendant also had a duty to protect the interests of other residents and this objective justified their decision to seek effective enforcement of the ban. The express finding of the judge to that effect was in my view plainly sustainable.

A specific argument adopted with respect to this aspect of the appeal was related to the submission that the letter of the 9 March was itself an act of disability discrimination given the appellant’s illiteracy. It was then asserted that if he had been contacted personally rather than by post, he would never have gone into the communal lounge on the 10 March to have the letter read to him, and the application for an injunction might never have been made.

For reasons I have given, I do not accept that the sending of the letter was of itself an act of discrimination and therefore this argument fails for that reason. But quite independently of that, this submission rests upon the premise that the judge would have accepted the appellant’s explanation as to why he had visited the communal lounge on that date. That is itself highly shaky given that he was not found to be a reliable witness and was disbelieved with respect to his account of what happened on the 5 March. But even had this point had been determined in his favour, it would not have assisted this aspect of the claim. A speculative possibility that the injunction would not have been sought, because the appellant would not have had cause to go to the communal lounge on the 10 March, does not alter the fact that it was the appellant’s behaviour which was the immediate cause of the ban and the seeking of the injunction. It was not the sending of the letter which made it impossible or unreasonably difficult for him to go to the lounge. Whatever effect his disability may have had on his ability to read, it did not cause him to act in anti-social ways.

Accordingly, in my view, the judge was correct in his analysis of this ground and the contention that there was unlawful disability discrimination with respect to the provision of a service under section 19 is misconceived.

The original complaint to the County Court also raised an allegation that the conduct infringed other provisions in Part III of the Act which impose similar duties to those set out above on persons who manage or control premises. It includes a duty not to discriminate in the way in which the controller permits the disabled person to make use of any premises or facilities, which would include the use of the communal lounge. It is not clear whether this argument was pursued before the judge below, and it was not directly raised in the notice of appeal, although Mr Stephenson did mention the point during his submissions without developing it. I shall briefly indicate why this alternative ground must in my view fail.

In principle it seems to me that it is indeed these provisions, rather than those relating to the provision of services, which are potentially in play where the complaint relates to the denial of the right to use the communal lounge. The relevant provisions relied upon are section 24A (2) read with 24D. I will not set them out. Suffice it to say that they also envisage that liability might arise where the application of a policy or practice by the manager of let premises makes it impossible or unreasonably difficult for a disabled person to make use of a facility which he is entitled to use (in this case the communal lounge) and there is an unjustified failure to make a reasonable adjustment.

A marked difference between the this section and the equivalent service provider section is that under this provision the controller should have received a request to change the policy or practice in issue, and it is not clear that this condition was satisfied here. Even if it was, in my judgment the claim would be bound to fail essentially for the same reasons why the service provider claim fails, namely that the practice or policy relating to the seeking of an injunction does not begin to make it impossible or unreasonably difficult for the claimant to make use of the communal lounge; and that in any event the pursuit of that injunction was justified for the reasons given by the judge. Accordingly, in my judgment in so far as this submission is still being relied upon, it must fail also.

This submission focuses on section 21B(1) which makes it unlawful for public bodies to discriminate against a disabled person in the exercise of their public functions. It is pertinent to note that section 21B(7)(a) provides:

“Subsection (1) does not apply to anything which is unlawful under any provision of this Act other than subsection (1)”.

In other words, if the provisions which regulate a public body as an employer, or provider of services, or as a landlord, already provide a remedy, this cannot be reinforced by relying on the fact that public functions are being exercised. To that extent these are residual provisions. This would, in my view, prevent the appellant from advancing precisely the same argument under this head which he has unsuccessfully pursued under the service provider or premises head.

Interestingly, the Rights of Access Code of Practice dealing with these provisions suggests (para 11.21) that these provisions may have a narrower compass than that:

“the activities covered by the public authority provisions are those activities which can only be carried out by public authorities and which are not similar in kind to the services that can be performed by private persons.”

There is some merit in this; it may be thought that where a claimant is alleging discrimination arising out of the acts of a public body acting as, say, a landlord or employer, Parliament would not have intended to subject the authority to greater obligations than apply to other landlords or employers merely because it is a public body. But I confess that my preliminary impression is that it is difficult to see how section 21B(7)(a) can be construed in this way. If this were the right construction, however, then the appeal on this ground would fail on the simple ground that the pursuit of an injunction by a public landlord is not an activity which can only be carried out by a public authority. However, this argument was not advanced before us and so I will act on the assumption that in principle section 21B applies to the decision to pursue the injunction.

Mr Stephenson submits that HH Judge Barrie was wrong to conclude that there had been no infringement of this provision. Both the writing of the letter to someone who could not read it, and the decision to pursue the injunctive proceedings against someone who was unable properly to appreciate their significance, meant that the appellant was subjected to an experience which was unreasonably adverse, to use the language of section 21E(1), and the respondent ought to have taken reasonable steps to mitigate this. He emphasises, rightly in my view, that the fact that the judge concluded that the decision to pursue the injunction was justified does not of itself answer the complaint. The way in which it was pursued could still constitute an unreasonably adverse experience.

The question in principle is whether the disability to which the claimant was subject made the experience of having to deal with the injunction application a worse experience than would be the case for someone not suffering that disability. If it did, then the further issues are whether there were steps which could reasonably be taken and were not taken to remove or mitigate that adverse effect; and if so, whether the failure to take those steps was justified. Even if the respondent was justified in pursuing the injunction proceedings, if by the taking of reasonable steps those proceedings could have been handled in a more sensitive way, recognising the particular difficulties facing this appellant, then it was an act of unlawful disability discrimination for the respondent to fail to take those steps.

The appellant focused in particular on two steps which could have been taken to change the experience for the appellant. The first was the sending of the letter, and I have already dealt with that. In my judgment it does not advance the appellant’s case under this head. Second, it is contended that the defendant could and should have investigated further the nature of the disability. They knew that the appellant was disabled - this was on his records and was the reason he was in that accommodation in the first place - and had they taken steps to have him examined, they would have discovered, as indeed they subsequently did following Mr Schofield’s report; that the appellant was suffering from a significant mental impairment. It caused them to drop the injunction proceedings. Mr Stephenson submits that this might have happened earlier if they had acted as they ought to have done.

In support of this submission the appellant also relies upon section 49A(1)(d) of the 1995 Act to which I have made reference, which obliges a public body in the exercise of its public functions:

“to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons.”

In my view, the appellant does not pass the first hurdle. He has not shown - and the onus is on him - that he has been subject to an unreasonably adverse detriment. There can be no doubt that he did not fully understand the nature of the procedures taking place, although the judge found that he could understand what was being said to him. But that ignorance of itself does not, in my view, lead to the conclusion that the experience of being subjected to the court process would be unreasonably adverse.

That would be the case if, for example, there was evidence that the disability caused undue stress or anxiety. But there was no such evidence of that kind. Most people facing court proceedings of this nature will be worried by the process and will need to take advice; some will understand what is going on better than others. But it does not follow that those with lesser knowledge or understanding will necessarily find it a more distressing or difficult experience. Indeed, the converse could be the case.

In this case the judge observed that the way in which the proceedings were instituted did not make it impossible or unreasonably difficult for Mr Singh to deal with the case against him “in view of the sources of help that were readily available to him.” It is true that this focuses on section 21B(a)(i) rather than section 21B(a)(ii). The judge does not appear to have dealt specifically with the latter submission (but in fairness to him it is far from clear that it was ever properly before him). But in my view this finding of the judge is material to the latter subsection also. The availability of advice and other sources of help is highly significant when considering the impact which proceedings of this kind will have on a disabled person. There is simply no evidence that the appellant did find the process particularly onerous (perhaps because it was not the focus of attention below). Furthermore, he was in fact represented in court, albeit not from the beginning, and had assistance at an early stage from the Derby Racial Equality Council, which wrote letters on his behalf.

It follows that, in my view, the appellant has not shown that the injunction proceedings subjected him to an “unreasonably adverse experience” when compared with the experience of someone without his mental impairment.

In view of my finding that there was no unreasonably adverse experience, the question of reasonable adjustment does not arise. However, I see force in the submission that the respondent failed to have proper regard to the appellant’s disability when deciding to take these proceedings and that as a consequence they disabled themselves from making such reasonable adjustment as was or may have been appropriate, and Section 49A reinforces that obligation. For example, they might have ensured that Mr Singh was represented in the proceedings at some stage before he actually was.

Indeed, I accept the submission of Mr Stephenson that had appropriate steps been taken earlier, the defendant might not have pursued the injunction at all. This is supported by the fact that they did not in fact seek to pursue the injunction once they understood the full position. But that is not the same as saying that they would have been obliged not to do so. The finding of the judge is that they were justified, and for reasons I have given, I believe that to be a sustainable finding. It follows that no act of discrimination has been suffered as a result of the failure by the respondent to investigate as thoroughly as they ought to have done. (Even if this failure constituted a breach of section 49A of the Act, that creates no separate cause of action.)

I can deal with this very briefly. The contention is that the judge erred in failing to find that the sending of the letter of 9 March to the appellant constituted indirect racial discrimination under section 1(1)(A) of the Race Relations Act. The judge accepted that the inability to read English was to a substantial degree a consequence of Mr Singh’s Indian origins and that therefore there was prima facie indirect discrimination. The question was whether the sending of the letter was justified, that is, was a proportionate means of achieving a legitimate aim. The judge concluded that it was. I have already set out why the judge reached that view. In my opinion he was plainly justified in reaching that conclusion. Nor do I think there was any detriment to Mr Singh in receiving the communication in that way.

It was suggested by Mr Stephenson that the letter could have been sent in Punjabi. That, however, would have been of no use either given that he is illiterate. I therefore reject this ground also.

For these various reasons, in my view, this appeal fails.

I agree.

I also agree.