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Housing: Possession orders and the Disabled - practical considerations for Local Authorities

The case of Barnsley Metropolitan Borough Council v (1) Darren Norton (2) Louise Norton (3) Samantha Norton [2011] EWCA Civ 834 has emphasised the trend of courts seeking to get local authorities

...to live up to the practical consequences of their duties under the Disability Discrimination Act 1995 ("the DDA") and the Equality Act 2010 ("the EA"). The case concerned a school caretaker whose role permitted and required him to live in a local authority owned property. He was dismissed from his employment and the Council sought possession of the property. However, the provisions of s.49A of the DDA, now enshrined in s.149 of the EA were engaged as the caretaker had a disabled daughter. The appeal rested on the failure of the Council to consider the implications of a possession order on the caretaker's daughter when deciding to issue proceedings.On appeal the Council argued that s.49A did not apply to its decision to issue possession proceedings, but instead should be considered within the context of how it should approach its duties under Part 7 of the Housing Act 1996 to re-house those with particular circumstances as a matter of priority. It was argued that S49A, and by corollary s.149 of the EA, applied only to interpreting specific legislation that impacted on the rights of disabled people.

Lloyd LJ, giving the leading Judgment, rejected the Council's arguments. The wording of the DDA imposed a general duty on public bodies and not one limited to instances of specific legislation. The Council was under a duty to consider the daughter's position before issuing proceedings. That duty had been breached. However, the Council was saved by the practicalities of the situation. It was able to remedy its breach by applying the DDA considerations for the provision of suitable alternative accommodation under Part 7. As landlord of the property, the Council could control when the possession order was executed. Granting of the possession order did not, in any practical sense, debar the Council from considering the disability of the caretaker's daughter when assessing priority and the timing of transfer of possession. Setting aside the possession order was therefore not necessary. There was still time for practical measures to be put in place to accommodate the caretaker's daughter and her family. The appeal was dismissed.

Morgan John / 1st Jan 1970


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