Barnsley MBC v Norton & Ors [2011] EWCA Civ 834

Subjects: Judicial Review – Public Sector Equality Duty – Scope of Public Sector Equality Duty – Due Regard – Possession proceedings

The Defendants were Samantha Norton (SN) who is a disabled child, and her parents Mr and Mrs Norton. Mr Norton lost his job and was unable to keep paying rent to C. C started possession proceedings. The Ds contested the decision to start possession proceedings on the basis that C had failed to have regard to the Public Sector Equality Duty (PSED) and that their Article 8 rights under the ECHR had been infringed.

Facts

SN was profoundly disabled and received the highest rate of care under the disability living allowance. Her home had been made safe for her and had been specifically adapted with items such as grab rails and handles. She had no sense of danger and needed to be accompanied at all times. No recent assessment of SN’s needs had been carried out. Mr Norton was employed as a caretaker at a school and had a tenancy of the caretaker’s house. In November 2009 his employment came to an end and the Council sought possession so that they could accommodate a new caretaker. It was not disputed in the appeal that C was legally entitled to possession but the Ds brought a public law challenge to the decision to bring and continue proceedings. C argued that the decision was not subject to challenge under s.49A of the DDA 1995 (s.149 EA 2010).

Held

The Court of Appeal upheld the Ds’ challenge. The decision was amenable to review. Although the Court did say that the PSED did not apply to every function in every circumstance, it held that the PSED was entirely general and applied to the carrying out of any function of any public authority. The PSED was not confined to those circumstances when a public authority was exercising a function that bore on the rights of a disabled person under some specific statute. The CofA declined to give general guidance but held that C was clearly under a duty to have regard to SN’s disability when making its decision to obtain an order for possession. The CofA held that, as it had found for the Ds under the PSED, it did not need to make a finding about the applicability of Article 8 ECHR.

Comment

Although the finding that the decision to bring and continue possession proceedings was amenable to judicial review is understandable, the reasons given by the Court of Appeal are unclear. Unfortunately, the Court held that they did not need to consider the scope of the duty because this case clearly fell within it. Those of you who have seen the seminal Australian film, The Castle, will instinctively know that it must have been the “vibe” of the legislation that led the CofA to its decision. For those of you who aren’t familiar with the film try http://www.youtube.com/watch?v=ITUSZ6LRHrk.

The transcript is available here: http://www.bailii.org/ew/cases/EWCA/Civ/2011/834.html