15 July, 2019
It has not quite been 10 years, but it has been some time now since the Equality Act 2010 hit the statute books. The swansong of Gordon Brown's Labour administration, it was an ambitious piece of legislation which sought to consolidate nearly 40 years' worth of anti-discrimination laws into a single Act of Parliament.
Although the Act broke new ground in several key respects, many of the concepts were already familiar to lawyers dealing with equalities legislation. Those of us in the housing law sector were relieved to see a satisfactory end to the debacle of Lewisham London Borough Council v Malcolm in particular. This had seen firstly landlord & tenant law, then employment law, turned upside down while the judges fretted over how to ensure fair treatment of disabled and non-disabled tenants and employees.
Possibly the most under-appreciated part of the legislation, however, is the Public Sector Equality Duty at section 149 of the Act, or PSED as it is otherwise known. This was a beefed-up reincarnation of the old section 49A of the Disability Discrimination Act 1995, which had required public authorities to "have due regard" to the need to promote positive attitudes towards disabled persons, and the need to encourage participation by disabled persons in public life. Cases such as Pieretti v Enfield LBC and R(W) v Birmingham City Council had already highlighted the scale and reach of this legislation. In Pieretti, the Enfield Council was found to have breached the duty in the handling of a single homelessness application and was told to go away and do it properly. On a slightly larger scale, the Court found that Birmingham had breached the duty in the handling of £107,000,000 in budget cuts to Adult Social Services - and was told to go away and do that properly!
The key message from both of these seminal decisions was the same. No matter how big or how small the issue, the public authority had to put "due regard" to disability issues front and centre in all decisions. The considerations have to be like the lettering in a stick of rock, not the rubber on the end of a pencil.
The PSED took this concept and broadened it across all protected characteristics, and it is routinely pleaded in Equality Act disputes. The majority of registered providers of social housing will be subject to its provisions under s.149(2), following the case law decision of London & Quadrant HT v Weaver that social landlords may be deemed to be exercising public functions for the purposes of judicial review and human rights legislation. This was seen recently in another recent case involving L&Q - London and Quadrant Housing Trust v Patrick  EWHC 1263 (QB) from May this year. Here, L&Q were seeking possession under mandatory Ground 7A for serious ASB (breach of injunction) and received very late disclosure that the tenant had a mental impairment. L&Q duly reviewed its position at the date of the hearing and prior to seeking a warrant for possession, and decided to proceed. The Divisional Court refused to overturn the decisions of the lower courts and endorsed L&Q's approach.
That all said, I am still troubled when I sit down with my housing clients and mention issues like Weaver, Pinnock, and the PSED, and am met with blank stares. The impact of these cases and this legislation cannot be under-estimated, but the lack of awareness within the sector is concerning. All too often, considerations around disability are reduced to housing aids and adaptations, and a policy "equality impact analysis" being tagged on at the end as an afterthought rather than being one of the first considerations. One of the objectives in my personal mission at Forbes has been to improve best practice and ensure that my clients are meeting their legal obligations before they get into trouble. In that regard, there is still a lot of awareness to be raised but I am optimistic that things are improving.
For more information contact Lachlan McLean in our Housing & Regeneration department via email or phone on 01772 220219. Alternatively send any question through to Forbes Solicitors via our online Contact Form.