Birmingham City Council v Wilson

This is an appeal by Birmingham City Council (“the Council”) against a decision of HHJ Oliver-Jones QC in the county court regarding the extent of the Council’s duties owed to the respondent, Ms Wilson, under the Housing Act 1996. The case concerns the extent of a housing authority’s duty of inquiry, in light of the public sector equality duty set out in section 149 of the Equality Act 2010, into whether an applicant for homelessness assistance has a disability requiring special arrangements to be made.

Section 193 of the Housing Act 1996 creates a duty on a local housing authority to secure suitable accommodation for occupation by an applicant who is homeless, eligible for assistance and has a priority need, who has not become homeless intentionally. Section 206(1) provides that the duty may be discharged by securing that suitable accommodation is made available. Section 193(7) provides that a local housing authority shall cease to be subject to the duty if, in certain circumstances, the applicant refuses a final offer of accommodation under Part 6 of the Act.

If an applicant for assistance under the 1996 Act is dissatisfied with a decision taken by a local housing authority, she may seek a review of that decision by the authority: section 202. An appeal then lies to the county court.

Section 149 of the Equality Act 2010 provides in relevant part as follows:

“149 Public sector equality duty

(1)

A public authority must, in the exercise of its functions, have due regard to the need to—

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2)

A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4)

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.

(5)

Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

tackle prejudice, and

(b)

promote understanding.

(6)

Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7)

The relevant protected characteristics are—

…
disability;

...

(8)

A reference to conduct that is prohibited by or under this Act includes a reference to—

(a)

a breach of an equality clause or rule;

(b)

a breach of a non-discrimination rule.

…”

Section 6(1) of the 2010 Act defines what is meant by “disability”:

“6 Disability

(1)

A person (P) has a disability if—

(a)

P has a physical or mental impairment, and

(b)

the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

Ms Wilson is a single parent of two boys, Keanu (date of birth 17 October 2002) and Romareo (date of birth 11 March 2005). On 19 March 2014 she applied to the Council as homeless, including Keanu and Romareo as members of her household. Her application was filled in on the Council’s standard computerised form with the assistance of a Council officer. In response to a question whether anyone included in the application suffered from a long term physical illness she mentioned that Romareo suffers from asthma (and upon indicating ‘yes’ to the question, a drop down box appeared which included prompts for details of the relevant doctor dealing with the case, so that the Council could make inquiries). However, in response to a question whether anyone included in the application had a physical disability or a mental illness, she indicated ‘no’ (and therefore no drop down box with prompts for more details appeared). The form as completed, presumably reflecting what Ms Wilson told the officer, also recorded in a table of personal information in respect of both Keanu and Romareo, in a column headed “Disability”, that this was “Not applicable” in each case.

Ms Wilson is not a medical or a legal expert. Her case in these proceedings is that Romareo does in fact suffer from a disability, being an extreme fear of heights. But at the time of her dealings with the Council she had not taken him to a doctor for any medical assessment. (Some months after the Council’s own decision-making processes had concluded, she obtained a report from a psychiatrist, dated 16 February 2015, which assesses that Romareo suffers from an autistic spectrum disorder, being a mental impairment with a substantial and long term effect on his ability to carry out normal day to day activities which include using a lift; he suffers from a fear of heights and lifts; is claustrophobic and has panic attacks when he enters a lift or looks out of a window in a high building).

Ms Wilson’s submission is that the Council should have done more to follow-up on matters she mentioned at this initial meeting and in her subsequent dealings with it which might perhaps be taken to have indicated that Romareo suffered from a disability, even though she did not appreciate that his condition could be described as a disability for the purposes of this application form or as a matter of equality law.

The form included space for a personal statement, which was filled in to reflect what Ms Wilson said. It did not refer to any problem regarding fear of heights on the part of Romareo.

The form also included a note indicating that Ms Wilson was asked if there was any reason for refusing high rise accommodation, followed by the cryptic entry “App has said – [blank]“.

A factual dispute has arisen whether Ms Wilson asked the Council officer at the meeting not to be given a flat in a high rise block because Romareo did not like tall buildings. The form as completed by the officer does not reflect this, and the absence of any record of a statement by Ms Wilson in this note could be taken to suggest that this was not said. However, in a later telephone conversation with another Council officer, Ms Yvonne Cowley, on 10 October 2014, as recorded by Ms Cowley in an email of that date to Mr Grant Kennelly (see below), Ms Wilson said that in the initial meeting she had asked not to be given a high rise flat. But in these proceedings no witness statement by Ms Wilson was adduced, and hence no further evidence was adduced by the Council regarding what had been said at the initial meeting.

On this state of the evidence, Mr Colville, who appears for the Council, submits that the proper inference is that nothing was said by Ms Wilson at the initial meeting about Romareo’s dislike of tall buildings; that inference is also supported by the fact that the Council did place her in a high rise flat after a short time, apparently without protest by her until October 2014. Mr Carter, who appears for Ms Wilson, accepts that it is difficult for the court to make a factual finding one way or the other.

The county court judge made no finding either way. In the event, it is not necessary for me to do so either, as in my view the outcome of the case does not depend upon whether this was raised at the initial meeting. If it was raised, it was done so even on Ms Wilson’s account to Ms Cowley in muted terms, as a matter of dislike rather than something that might be described as an illness or disability.

While the Council assessed Ms Wilson’s case it placed her and the children in temporary accommodation at Smithy’s Hotel in Edgbaston (a three-storey building) until 6 May 2014, when they were moved to a flat on the 11^th floor of a high rise building in Birmingham called Century Court. No complaints were made by Ms Wilson at this time regarding the suitability of either accommodation.

In a decision letter dated 19 June 2014 the Council notified Ms Wilson that it accepted a full housing duty under section 193 of the 1996 Act in relation to her and her sons. The letter advised Ms Wilson that she was able to bid for social housing, but that if she did not bid or did not make realistic bids the Council would make a realistic bid on her behalf (a so-called management bid), and that the property offered would constitute a final offer for the purposes of section 193.

Between June and August 2014 Ms Wilson made a number of bids which were unsuccessful, because not considered realistic. On 28 August 2014, therefore, the Council placed a management bid on her behalf for a flat on the 8^th floor of a high rise block called Thornton House. By letter dated 1 September 2014 the Thornton House flat was offered to Ms Wilson, with notice that it was a final offer. Ms Wilson was not happy with this flat.

At this juncture I should say something about the options available to her, as explained to us by counsel. She could have accepted the offer, but at the same time requested a review of its suitability: section 202(1A) of the 1996 Act. Or she could reject the offer and seek a review of its suitability. In the former case, if on review the property was found to be suitable despite her objections, she would remain in it. In the latter case, if on review the property was found to be suitable despite her objections, then she would lose it and would also lose her priority place in the queue for social housing provided by the Council.

Although we have not been shown all the literature provided to Ms Wilson, I have my doubts whether this choice and the consequences of each option were really fully explained to Ms Wilson in a way she could understand. The offer letter of 1 September 2014 only included this (to my mind, rather uninformative) statement on the subject: “You can ask for a review if you do not agree that the accommodation is suitable. You have this right whether you decide you accept or refuse this offer of accommodation”. In addition, on about 5 September 2014, when she sought to complain about the Thornton House flat allocated to her, she was also given the Council’s Homeless Decision Review Form to fill in, which has a series of boxes on the first page to be ticked to indicate which option of challenge is chosen, including box f (“You have accepted the offer of accommodation. However, you do not consider that the offer made was suitable to discharge the Council’s duty to provide accommodation”) and box g (“You considered the offer made was not suitable to discharge the Council’s duty to provide accommodation”). Again, this form does not explain the consequences of each option. Ms Wilson initially ticked box f, but crossed that out and ticked box g instead. In this way she indicated her choice to reject the offer outright.

I have gone into this in a little detail because one might have thought that, since Ms Wilson and her sons had been managing (however awkwardly) to live in the 11^th floor flat at Century Tower for some months by September 2014, the less risky course for her, all things considered, might have been to accept the offer of the Thornton House flat while at the same time requesting a review of its suitability. That way, even if she lost the argument about suitability, she would still have had the benefit of a flat rather than losing her priority status in the quest for allocation of social housing. The case before us does not turn on any of this and we had no evidence to explain in detail how Ms Wilson came to make her choice. However, I think it would be desirable for the Council to review how it presents this choice between acceptance of offer plus review and rejection of offer plus review, and the consequences of each option, in its standard forms and any literature given to applicants for social housing.

In the Homeless Decision Review Form completed by Ms Wilson on 5 September 2014 she said that one reason the Thornton House flat was not suitable was that her sons had a fear of heights. She wrote that this meant that she had to close her curtains all the time; most of the time she had to walk up the stairs rather than use the lift to access the 11^th floor flat at Century Tower; this was affecting her health and she was taking medication because of where she was living; and it was mentally disturbing her children and if they were not happy it would affect her health. She wrote that the flat was having an effect on her children at school: “it started to show also in school”. No professional’s or medical report or doctor’s note was presented to support these claims, nor was any doctor’s contact address given for discussion of the effect on the children.

By letter dated 15 September 2014 the Council rejected Ms Wilson’s reasons for refusing the Thornton House flat, noting that she had been living on the 11^th floor in Century Tower and no health issues had been reported. In the letter, the Council stated that it considered that its duty under section 193 had been finally discharged and Ms Wilson had lost her priority place for allocation of social housing. The letter informed her of her right to request a review under section 202 of the 1996 Act.

Ms Wilson requested such a review. By letter dated 1 October 2014 from Mr Kennelly for the Council, Mr Kennelly introduced himself as the review officer and explained the procedure to be followed on the review. He explained that if he considered that there was a deficiency or irregularity in the decision of 15 September but he was nonetheless minded to make a finding adverse to her, she would be informed of that fact and the reasons why and given an opportunity to make further representations orally and/or in writing before a final decision was made. Mr Kennelly also requested that, if Ms Wilson had any further information that she wished to be considered in support of her review request, she should submit it so that he could consider it.

Ms Wilson supplied no further information in answer to that request. However, Ms Cowley telephoned her on about 10 October 2014 to interview her to try to elicit any further relevant information. Ms Cowley reported the outcome to Mr Kennelly in her email of that date as follows:

“Ms Wilson has returned my call and advises as follows re using lift at her current accom, Century Tower:

She uses the lift “most of the time”. She can’t use the stairs all the time due to having foot pain. Her children are afraid of living in the building. It shakes and vibrates when there is a hard wind. The children do not like the height. She asked at her homeless interview not to be given a high rise flat. She realised her son had a problem with heights when he went on a school trip and there was a tower he would not ascend. Can’t remember where this was. When I queried her requesting lower level accommodation she advised she has been to ‘the housing and been told she has to wait’. Ms Wilson advises first and second floor is OK but nothing above 2^nd.”

Again, Ms Wilson did not suggest that she had taken Romareo to see a doctor or other professional about the problem nor that there was any medical evidence to hand to support any suggestion that the fear of heights was outside any normal range.

Mr Kennelly proceeded to review the case on the basis of the information available to him. He decided that the Council’s original decision letter of 15 September should be set aside because it did not adequately demonstrate sufficient consideration of relevant matters, including Ms Wilson’s assertion that the children were afraid of high-rise accommodation. However, Mr Kennelly was minded to make adverse findings of his own about that and other matters, so in accordance with the procedure explained in his letter of 1 October he sent Ms Wilson a “minded to find” letter dated 29 October 2014 to explain his proposed findings and reasoning and to invite any further representations from her.

The letter of 29 October set out a lengthy consideration of Ms Wilson’s case. It included the following statement of findings which Mr Kennelly was minded to make:

“You have stated that your children are scared of high rise accommodation. In conversation with my colleague on 10 October, you stated that your children are afraid as the building shakes and vibrates when there is a high wind, You further stated that you became aware that your son had a fear of heights when he went on a school trip and was unwilling to climb a tower, but you could not remember where this was. I note that your sons are 12 and 9 years of age. A fear of heights is a normal human emotion which is protective in nature. I consider that it is normal for children to have a fear of this type, however I do not consider that it is a matter which renders them unable to live in high rise accommodation. You have since May been living in the accommodation above, which is a high rise flat on the 11th floor. The property offered to you was a high rise flat on the 8th floor. I consider that you have clearly demonstrated that the fact that the accommodation is within a high rise block is not a matter which physically prevents your children from accessing or residing within such accommodation. Whilst the accommodation may not be of the type of your or your children’s preference, and whilst your children may at the present time have a fear of heights, I do not accept that this is in itself a matter which renders accommodation within a high rise block inherently unsuitable for your household. I consider that you have clearly demonstrated that your children’s alleged fear of accommodation of this type had not prevented you from making reasonable adjustments to your normal daily routine in order to adapt to accommodation of this type and I conclude that the property offered was not unsuitable on the basis of your children’s alleged fear of heights.

You have stated that you have to climb the stairs in order to access the current property as a result of your children’s alleged fear of heights and that this is having an impact on your physical health and the mental health of your children. There is of course a lift provided within high rise blocks and the City Council does not expect tenants to routinely climb stairs in order to access accommodation. In conversation with my colleague on 10 October you confirmed that you do in fact use the lift within the current block “most” of the time, I consider that it would have been equally reasonable for you to use the lift within the block offered to access the property similarly. I do not accept that the fact that you occasionally choose to use the stairs to access the property when you have confirmed that you can and do use the lift is a matter which rendered the offer of accommodation unsuitable for your household.”

The conclusion which Mr Kennelly was “minded to” make was that there was no new information which would suggest that the offer of accommodation in the letter of 1 September was unsuitable or that that offer of accommodation was not reasonable for Ms Wilson to accept.

In a later section of the “minded to find” letter, Mr Kennelly stated that he had given consideration to the public sector equality duty contained in section 149 of the 2010 Act, and set out that provision in full. The letter continued:

“Having considered the information that you have provided to the City Council, the contents of your housing file and the facts available to me, I am satisfied that the City Council has acted in accordance with the above duties when dealing with your application and that any protected characteristics within your household have been duly noted and reasonable adjustments made to ensure that you have been able to access the service and receive the appropriate assistance commensurate with your circumstances. I note that there is no information available to the City Council to suggest that any member of your household suffers from a condition which could reasonably termed a disability within the meaning of the above legislation and I conclude that no reasonable adjustments are required as a result. I do not consider that in any eventuality the scope of reasonable adjustments available to the City Council would extend to accepting a further housing duty to a household where a suitable offer of accommodation had already been made.”

The letter stated that Ms Wilson could make representations, orally or in writing or both, by 7 November 2014. She made none.

By letter dated 7 November 2014 Mr Kennelly set out his final decision on the review. He adopted and set out again the findings and conclusions previously indicated in his “minded to find” letter. His decision was that the Thornton House flat was suitable accommodation and that Ms Wilson’s refusal of it had brought the Council’s duty to her under section 193 to an end.

Ms Wilson, who had obtained advice by this stage, appealed against this decision on the ground that the Council had failed to make necessary inquiries as it should have done, in order to determine whether Romareo was “disabled” for the purposes of the 2010 Act by reason of his fear of heights and claustrophobia.

On 17 April 2015 the judge allowed Ms Wilson’s appeal. He held that the review decision was unlawful in that it was based on inadequate inquiries into Romareo’s fear of heights and claustrophobia, and whether those conditions amounted to a disability for the purposes of the 2010 Act. The judge directed himself by reference to the leading case of Pieretti v London Borough of Enfield [2010] EWCA Civ 1104; [2011] 2 All ER 642 and said this at para. [13]:

“In my judgment, once there is evidence that suggests, as in my judgment was clearly the case here, that there was a real, as opposed to a fanciful, possibility of there being mental disability, then the obligation to make further enquiry is engaged. As was made clear in Pieretti at paragraph 33, the law does not require that in every case decision-makers under section 184 or section 202 must take active steps to enquire whether the person to be subject to the decision is disabled. That would be absurd and I agree. However, once the evidence suggests a real possibility, then those steps must be taken. In this case, I am satisfied that such a possibility existed on the basis of the information that was available and, consequently, this appeal must be allowed for that reason, there having been no enquiries made.”

There was a good deal of common ground between the parties on the legal issues:

Applying these principles to the facts of this case, in my judgment there was no error of approach on the part of Mr Kennelly in conducting the review on behalf of the Council or in the conclusions he came to.

Mr Kennelly recognised that a question had arisen whether Ms Wilson’s children’s fear of being in high rise accommodation was such as to make the Thornton House flat unsuitable. He did not have to frame this question in terms of whether they might have a disability: it was sufficient that he explore the general problem of their fear of heights as it had been presented by Ms Wilson.

Mr Kennelly was entitled to expect Ms Wilson to bring forward any information which she had which might bear on that, both as a matter of general common sense on her part and because (i) she had already been told in the Council’s decision letter of 15 September 2014 that the offered accommodation did not appear to be unsuitable because she was currently living in a tower block (Century House) and had not reported any health issues as a result (so she knew that if she wanted to contest this in the review by saying that there was in fact a health problem or that this was an especially compelling issue, she should bring forward evidence to that effect); (ii) she had been expressly asked in Mr Kennelly’s letter of 1 October to provide any further information she wished to have considered in support of her review request; and (iii) Mr Kennelly set out his “minded to” reasoning clearly and fully in his letter of 29 October and gave Ms Wilson yet another opportunity to challenge it, make further representations and bring forward any relevant additional evidence.

The absence of any response by Ms Wilson to these requests, other than what she told Ms Cowley on 10 October, meant that Mr Kennelly was entitled to conclude that the problems experienced by Ms Wilson’s children of living in a high rise flat (which they had already been doing at Century House for some months) were not at a level which had led her to think she should obtain any professional opinion or medical diagnosis.

Mr Carter sought to suggest that a combination of the information provided by Ms Wilson in the Homeless Decision Review Form and in the telephone interview on 10 October ought to have raised in Mr Kennelly’s mind that there was a “real possibility” (to use Wilson LJ’s language) that Romareo had a disability for the purposes of the 2010 Act. I do not agree. By the time Mr Kennelly took the final decision on 7 November, he had gone through a process of inquiry which allowed him rationally to decide that, whatever might have been the position at the start of his investigation, there was no real possibility at the end of it, on the information available, that either child had a disability for the purposes of the 2010 Act. In the absence of any indication that Ms Wilson thought that any issue of such gravity had arisen as to need her to address it by seeking any professional advice or diagnosis, Mr Kennelly could rationally assess the position to be one where the children’s fear of heights was within the normal spectrum and not indicative of any possibility that they had a disability within the meaning set out in the 2010 Act.

The rationality of that conclusion is underwritten, in particular, by the fullness of the reasons set out by Mr Kennelly in his “minded to find” letter of 29 October, in which in effect he explained that he considered that the children’s fear of heights was within the normal range and hence that they did not have a disability. His explanation was not in technical language and I think was readily understandable by an ordinary person. Ms Wilson must have understood that if she wished to contest that assessment or could point to anything which indicated that it was wrong, and that in fact Romareo’s fear of heights was something outside the normal range, now was the time to do so. Yet she did not respond to that letter to contest Mr Kennelly’s assessment, despite the invitation to do so.

Hence by the time of the final review decision by Mr Kennelly on 7 November, he had correctly focused on the question of the difficulties experienced by Ms Wilson’s children owing to their fear of heights; he had taken reasonable steps according to the Khatun standard to gather information on that topic (including by asking Ms Wilson for anything further she could bring forward); and he had concluded – and concluded rationally – that there was no real possibility that either of the children was disabled for the purposes of the 2010 Act. According to the guidance given by Wilson LJ in Pieretti, therefore, by 7 November Mr Kennelly was not subject to any further obligation of investigation by virtue of section 149 of the 2010 Act.

In my view, with respect to the judge, he erred at para. [13] of his judgment in his application of the Pieretti guidance in the context of this case. He applied his own judgment to the question whether there was a real possibility of there being mental disability (holding that there was), rather than asking the correct question, which was whether Mr Kennelly could rationally conclude by the end of his investigation that there was no real possibility of either child having a mental disability.

For the reasons given above, I would allow this appeal and substitute for the order made by the judge an order dismissing the appeal to him.

I agree. Like Sales LJ, I consider that it would be desirable for the Council to review its standard forms and letters to explain the consequences of different options open to those who fill in forms or read letters. It is understandable that housing authorities use standard form or template letters for their communications with individuals in the position of Ms Wilson. But, because some such persons may not be used to receiving long communications containing complex information it is particularly important for such letters and documents to be expressed as clearly and simply as possible.

I agree with both judgments.