Pieretti v Enfield LBC
 EWCA Civ 1104
Court of Appeal: Mummery, Longmore and Wilson LJJ
The Court of Appeal has held that a local authority’s duty under s.49A(1)(d), Disability Discrimination Act 1995, to have due regard to the need to take steps to take account of disabled persons’ disabilities applies to a decision under Pt 7, Housing Act 1996.
In performing their functions, public authorities (including local authorities) must 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: s.49A(1)(d). A person has a disability for the purposes of the 1995 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: s.1, 1995 Act. (Once the relevant provisions of Equality Act 2010 are in force, the duty under s.49A(1), 1995 Act, will be replaced with a more general “equality duty”: s.149, 2010 Act. Pending the commencement of those provisions, the duty under s.49A(1), 1995 Act, remains in force: Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (SI 2010/2279), arts 15 and 16.)
The appellant and his wife were assured shorthold tenants of a house. In April 2008, their landlady obtained a possession order against them after serving notice under s.21, Housing Act 1988. In May 2008, the appellant applied to the respondent authority for assistance under Pt 7, Housing Act 1996.
In a “Homelessness Enquiry Form”, in reply to the questions “Do you or your partner have a mental illness?” and “Do you or your partner have a physical disability?” the appellant answered “yes” to both. He stated that he suffered from depression and that his wife had acute back problems and arthritis. The form also asked whether the appellant had a disability within the meaning of Disability Discrimination Act 1995. The appellant answered “no”.
The appellant and his wife also completed a “Homelessness Application Form”. This also inquired whether the appellant and his wife had a disability within the meaning of the 1995 Act. Both the appellant and his wife answered “yes.” The authority were also provided with information from their GP to the effect that they both suffered from severe depression.
The authority made inquiries of the former landlady and were told that she had brought the possession proceedings because the appellant and his wife had delayed in paying the rent. The authority concluded that the appellant was homeless, eligible for assistance and had a priority need but had become homeless intentionally. That decision was upheld on review and the appellant appealed to the county court. Although the original grounds of appeal did not mention the 1995 Act, the grounds were amended to include a contention that the authority had failed to comply with s.49A, 1995 Act and should have made further enquiries to ascertain whether the depression was relevant to the failure to pay the rent on time. The judge found as a fact that the appellant was not disabled and dismissed the appeal. The appellant appealed to the Court of Appeal.
At the appeal hearing, the authority contended that s.49A, 1995 Act, was not relevant on the following grounds: (a) s.49A, 1995 Act did not apply to the determination of individual applications but only to the formulation of policy; (b) Pt 7, 1996 Act, was a complete code that comprehensively addressed the rights and needs of disabled people so that s.49A, 1995 Act added nothing; (c) a decision under Pt 7, 1996 Act, was not a “function” within the meaning of s.49A, 1995 Act; and, (d) as the authority had not been asked to consider s.49A, 1995 Act, they were not obliged to make further inquiries relating to any disability suffered by the appellant or his wife. In relation to point (d), the authority relied on Cramp v Hastings BC; Phillips v Camden LBC  EWCA Civ 1005;  H.L.R. 48.
Allowing the appeal, the court rejected the authority’s arguments. The duty under s.49A, 1995 Act, applies to both the formulation of policy and carrying out functions which includes inquiries under Pt 7, 1996 Act. The law does not require that in every case an authority must take active steps to inquire into whether a person is disabled. It is necessary, however, for an authority to make further inquiries if some feature of the evidence presents a real possibility that the appellant (or a household member) is disabled. The appellant had said that that he was disabled and that he had a mental disability. His GP had confirmed this. The authority should have considered whether the appellant suffered from a disability and whether it was relevant to the issue of intentionality.
The general rule in Cramp needed to be qualified. If a reviewing officer was not invited to consider an applicant’s disability it was wrong, in light of s.49A(1), to say that he should only consider it if it was obvious. Instead, he needed to have regard to the need for him to take steps to take account of a person’s disability in circumstances in which it would be appropriate to take them. In the instant case this required the reviewing officer to have made further inquiries, arising from the evidence before her, of the real possibility that the appellant’s potential disability was relevant to whether he had become homeless intentionally.