Council not in breach of its public sector…

FG is a disabled resident of the Royal Borough of Kensington and Chelsea. Her diagnoses include heightened sensitivities to noise and smell which exacerbate her mental health conditions, including paranoid schizophrenia.

In May 2022, she began renting Flat 7 in a block owned by the Royal Borough of Kensington and Chelsea Council (“the Council”), living directly above Flat 5. The claim related to noise disturbances from Flat 5 and unpleasant odours in Flat 7, and particularly the kitchen, which she said were significantly impacting her physical and mental health. She made several complaints to the Council regarding these issues.

In response to her complaints, various assessments were conducted. An Environmental Health Consultant jointly instructed by FG and the Council attended Flat 7 and produced a report in August 2022. He noted a smell in the kitchen but did not classify it as a statutory nuisance. An acoustics expert indicated that noise levels from Flat 5 were slightly below acceptable building regulations, suggesting that while noise was present, it was within tolerable limits for such a property type. The Council also instructed engineers to attend Flat 7 on five occasions to investigate and attempt to deal with the smell issue and instructed a chartered surveyor. Neither the engineers nor the chartered surveyor could identify the source of the smell. The chartered surveyor suggested remedial works including descaling of the pipework, sealing a gap at the foot of the service duct panel and, if those did not remedy the issue, removing the service duct panels to examine the drainage stage. All the recommendations were followed except for the removal of the service duct panel.

Additionally, FG’s solicitors then instructed an acoustics expert who produced a report that concluded that the airborne noise levels in Flat 7 emanating from Flat 5 marginally failed to comply with the relevant standard under the Building Regulations 2010, but that the failure (1 decibel) was within the normal tolerance of sound testing. The acoustics report also set out a number of recommendations for structural changes that could be made to address the noise, full implementation of which would have required structural work within Flat 5 that would partially reduce its living space.

FG continued to express that both the noise and smell issues significantly impacted her wellbeing, and following correspondence with the Council, issued a judicial review claim. Permission was granted to proceed on three grounds:

The Council, in refusing or failing to take reasonable steps as set out in the Acoustics Report to address the noise issue, has failed to act in accordance with its legal obligations in that it has:

a. Discriminated against FG in the exercise of a function, contrary to sections 20 and 21 of the Equality Act 2010 (“the 2010 Act”); and/or

b. Subjected FG to a detriment in the provision of a service contrary to section 29(6) and/or section 29(2)(c) of the 2010 Act.
In failing to take steps as recommended to address the smell, RBKC similarly failed to act in accordance with its obligations under the 2010 Act.
RBKC failed to have due regard to the need to eliminate discrimination and/or advance equality of opportunity in dealing with FG’s accommodation, contrary to section 149 of the 2010 Act.

Issue 1: Part 3 or Part 4?

The first issue to be determined by Murray J was whether the claim fell within the scope of Part 3 (Services and Public Functions) or Part 4 (Premises) of the 2010 Act. If the claim fell within Part 3, as argued by the Claimant, then the Council was subject to the duties under sections 20, 21 and 29 of the 2010 Act. These sections provide, in short, that:

Section 20 applies where the 2010 Act imposes a duty to make reasonable adjustments for disabled persons, comprised of three requirements. The relevant requirement is set out in section 20(4) (“the Second Requirement”) which requires the duty-bearer to take reasonable steps to ensure that a disabled person can avoid a disadvantage caused by a physical feature which puts a disabled person at a substantial disadvantage.
Section 21 provides that a failure to comply with any of the three requirements in section 20 is a failure to comply with a duty to make reasonable adjustments for a disabled person and is therefore discrimination against that person.
Section 29 provides that a service provider concerned with the provision of a service to the public or a section of the public must not discriminate against a person requiring the service, including by doing anything that constitutes discrimination, harassment or victimisation (section 29(6)).

Schedule 4, paragraph 2(2) makes clear that the Second Requirement does not apply to a matter falling within Part 4. Under Part 4, which sets out provisions prohibiting discrimination, harassment and victimisation in the disposal and management of premises, there are various exclusions set out in section 32. Section 32(3)(b) provides that Part 4 does not apply to the provision of accommodation if the provision is for the purpose only of exercising a public function or providing a service to the public or a section thereof.

The Council argued that the claim fell within Part 4. The Judge agreed, holding that the exception in section 32(3)(b) was not applicable. At [97]:

“A local housing authority does not provide housing accommodation “for the purpose only of exercising a public function”. It provides housing accommodation in order to comply with its statutory obligation to do so, having exercised the public function of allocating that housing accommodation to a person. Its provision of housing accommodation has more than one purpose, including, at a minimum:

i) Complying with its statutory obligation to make the accommodation available to the person to whom it is allocated pursuant to its housing allocation scheme;

ii) managing its social housing stock in the public interest…

iii) in a case (such as this one), where it is also the landlord of the relevant property

a. complying with its private law obligations under the tenancy agreement …

b. complying with its statutory obligations as a landlord in relation to its tenant.” (emphasis added)

The Second Requirement therefore did not apply.

Issue 2: if Part 3 is applicable, can a physical feature of Flat 7 or 5 give rise to the Second Requirement being imposed on RBKC?

It was strictly unnecessary to determine this point in light of the judge’s earlier conclusion, but he nonetheless considered that, even if the claim fell within Part 3, no duty would arise in respect of section 20(4). The Court of Appeal held in Finnigan v Chief Constable of Northumbria Police [2014] 1 WLR 445 (CA) that the duty to make reasonable adjustments is anticipatory and is determined by reference to the needs of disabled persons as a class and not by reference to an individual in a specific case. In this case, there was no anticipatory duty imposed on the Council as there was no reasonable adjustment that it could have made in order to reduce or eliminate the substantial disadvantage experienced by FG [105]. In these unusual circumstances, the anticipatory duty arose only “if there is a sufficient class of [disabled persons affected] such that it would be apparent to a reasonable landlord that such steps should be taken”.

Issue 3: did RBKC comply with its duty to make reasonable adjustments?

In accordance with the provisions of section 136 of the 2010 Act, FG had, through the medical and expert evidence presented in support of the claim, discharged the evidential burden on her to prove a prima facie case that the 2010 Act had been contravened [111]. The Council bore the duty to prove it had not contravened its duty. Having regard to the facts, the Judge was satisfied that RBKC had not contravened its duty. It was entitled to conclude that the steps recommended to eliminate the noise and smell would not be reasonable steps to take [113-117]. Further, considering the steps that had already been taken to deal with the noise and smell issues, the duty had been discharged.

FG’s claim was dismissed. The judge’s findings are summarised at [122].

This blog was written by Claudia Hyde.