Disability Discrimination and Statutory Nuisance: Krishma Patel looks at the recent decision in the case of R (Fisher) v Durham CC  EWHC 1277 (Admin) Knowles J
Ms Fisher was a retired teacher and in 2014 she began suffering from a neurological condition, causing her to make involuntary sounds and noises. She lived in privately rented accommodation within Durham Council’s geographical remit. As a result of her condition, she would often scream and shout at night and neighbours complained that this was distressing and offensive. In November 2018, Durham CC served a noise abatement notice upon her under s.80 of the Environmental Protection Act 1990, requiring her to stop making those noises and giving her 1 hour to comply.
As per the applicable legal principles, if Ms Fisher did not comply with the requirements of the notice, she would be committing a criminal offence under section 80(4) of the EPA 1990 (subject to a defence of reasonable excuse).
Ms Fisher issued judicial review proceedings, arguing that service of the abatement notice constituted unlawful discrimination, contrary to ss.15 and 29 of the Equality Act 2010. She also claimed that there had been further breaches of section 149 of the Equality Act 2010 and Articles 8 and 14 of the European Convention on Human Rights.
At an oral hearing, the High Court granted permission to apply for judicial review. It was noted that the question was one of wider public importance, justifying a full hearing. Whilst there was a right of appeal to the Magistrates Court in respect of an abatement notice and the possibility of civil proceedings in the County Court, it was decided that neither route would offer an effective remedy.
The Judicial Review hearing took place on 21 May 2020 and Ms Fisher’s position was as follows:
a) By serving an abatement notice upon her, Durham Council had unlawfully discriminated against her in breach of section 15(1) and section 29(6) of the Equality Act 2010.
Section 15 of the Equality Act deals with discrimination arising from disability and section 29 (6) deals with discrimination in the exercise of public function (as well as harassment and victimisation).
b) The Council had failed to pay any proper regard to the matters outlined in section 149 of the Equality Act 2010. The Council had therefore failed to comply with the Public Sector Equality Duty (PSED).
Section 149 of the Equality Act requires a public body exercising its functions to have regard to the need to:
- eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
- foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
c) There was a breach of Article 14 of the ECHR, since the anti-discrimination provisions of the Equality Act 2010 were stronger than those in Article 14. Therefore, if the first ground succeeded, the third ground should also succeed.>
d) It was submitted that in all the circumstances the decision to serve a noise abatement notice was perverse/irrational and unreasonable in the Wednesbury sense.
On behalf of the Council, it was agreed that Ms Fisher was disabled within the meaning of the Equality Act 2010 and that service of the abatement notice was unfavourable treatment of Ms Fisher, given that the nuisance had arisen as a consequence of her disability.
However, the Council denied any breach of the Equality Act 2010 on the basis that pursuant to section 15 (1)(b) of the Act, the notice was a proportionate means to achieve a legitimate aim. The Council argued that the legitimate aim was the abatement of the nuisance and on the question of proportionality, the Council pointed to everything that had been done to engage with Ms Fisher before service of the notice.
As to section 149 of the Equality Act 2010, it was submitted that section 80 of the Environmental Protection Act envisaged service of an abatement notice within (at most) seven days from the occurrence of the statutory nuisance, but that 36 weeks had elapsed since the Council had determined the existence of the statutory nuisance, indicating the extent to which the factors in section 149 were considered. Further, due regard had been given to the need to eliminate discrimination, harassment and victimisation; to the need to advance equality of opportunity between the Ms Fisher and others and to the need to foster good relation between hers and those who did not share her disability.
With respect to breaches of the ECHR, the Council relied on s 6(2) of the Human Rights Act 1998 and the mandatory nature of the duty to serve an abatement notice. It was argued that the mere service of a notice was not capable of infringing Ms Fisher’s rights under Article 8 or A1P1, read with Article 14. However, a failure to have served the Notice would have been capable of infringing the rights of others under Article 8 and A1P1.
As to the final ground raised by Mr Fisher, the Council argued the notice served as a necessary precondition to taking other action which was capable of solving the issue such as injunctive relief. Therefore, to serve the notice was not perverse but part of the fulfilment of the Council's statutory duties.
The claim was dismissed. Service of the Notice amounted to unfavourable treatment on the grounds of disability and therefore discrimination. However, the Court found that the discrimination was justified.
There was a legitimate aim of protecting the health and amenity of Ms Fisher’s neighbours, and the interests of the relevant property owners, which justified the modest limitation of the Ms Fisher’s fundamental right as to how she lives in her home.
It was found that the Council had tried to work with Ms Fisher to manage the impact of her outbursts. This included discussions about re-housing Ms Fisher and taking advice about sound insulation at her property. The Court noted that ‘the service of the Notice was a last resort when all else had failed despite the Council's very considerable efforts over a period of time’ [para 135 of the Judgment].
Whilst there had not been any formal assessment under section 149 of the Equality Act 2010, the Council had been fully aware of Ms Fisher’s disability and had tried to consider both her needs as well as the interests of her neighbours. The Court determined that the Council had due regard to their statutory equality duty towards Ms Fisher as a disabled person so as to fulfil the statutory requirements.
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Krishma Patel is a member of the Housing and Business & Property teams at 42BR Barristers.
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