“6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.” (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”
“You can ask for a review if you do not agree that the accommodation is suitable. You have this right whether you decide you accept or refuse this offer of accommodation”
“it started to show also in school”
“Ms Wilson has returned my call and advises as follows re using lift at her current accom, Century Tower: She uses the lift “most of the time”
“You have stated that your children are scared of high rise accommodation. In conversation with my colleague on 10 October, you stated that your children are afraid as the building shakes and vibrates when there is a high wind, You further stated that you became aware that your son had a fear of heights when he went on a school trip and was unwilling to climb a tower, but you could not remember where this was. I note that your sons are 12 and 9 years of age. A fear of heights is a normal human emotion which is protective in nature. I consider that it is normal for children to have a fear of this type, however I do not consider that it is a matter which renders them unable to live in high rise accommodation. You have since May been living in the accommodation above, which is a high rise flat on the 11th floor. The property offered to you was a high rise flat on the 8th floor. I consider that you have clearly demonstrated that the fact that the accommodation is within a high rise block is not a matter which physically prevents your children from accessing or residing within such accommodation. Whilst the accommodation may not be of the type of your or your children’s preference, and whilst your children may at the present time have a fear of heights, I do not accept that this is in itself a matter which renders accommodation within a high rise block inherently unsuitable for your household. I consider that you have clearly demonstrated that your children’s alleged fear of accommodation of this type had not prevented you from making reasonable adjustments to your normal daily routine in order to adapt to accommodation of this type and I conclude that the property offered was not unsuitable on the basis of your children’s alleged fear of heights. You have stated that you have to climb the stairs in order to access the current property as a result of your children’s alleged fear of heights and that this is having an impact on your physical health and the mental health of your children. There is of course a lift provided within high rise blocks and the City Council does not expect tenants to routinely climb stairs in order to access accommodation. In conversation with my colleague on 10 October you confirmed that you do in fact use the lift within the current block “most” of the time, I consider that it would have been equally reasonable for you to use the lift within the block offered to access the property similarly. I do not accept that the fact that you occasionally choose to use the stairs to access the property when you have confirmed that you can and do use the lift is a matter which rendered the offer of accommodation unsuitable for your household.”
“Having considered the information that you have provided to the City Council, the contents of your housing file and the facts available to me, I am satisfied that the City Council has acted in accordance with the above duties when dealing with your application and that any protected characteristics within your household have been duly noted and reasonable adjustments made to ensure that you have been able to access the service and receive the appropriate assistance commensurate with your circumstances. I note that there is no information available to the City Council to suggest that any member of your household suffers from a condition which could reasonably termed a disability within the meaning of the above legislation and I conclude that no reasonable adjustments are required as a result. I do not consider that in any eventuality the scope of reasonable adjustments available to the City Council would extend to accepting a further housing duty to a household where a suitable offer of accommodation had already been made.”
“In my judgment, once there is evidence that suggests, as in my judgment was clearly the case here, that there was a real, as opposed to a fanciful, possibility of there being mental disability, then the obligation to make further enquiry is engaged. As was made clear in Pieretti at paragraph 33, the law does not require that in every case decision-makers under section 184 or section 202 must take active steps to enquire whether the person to be subject to the decision is disabled. That would be absurd and I agree. However, once the evidence suggests a real possibility, then those steps must be taken. In this case, I am satisfied that such a possibility existed on the basis of the information that was available and, consequently, this appeal must be allowed for that reason, there having been no enquiries made.”
“… it is for the decision-maker and not the court, subject … to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such”
“… Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely”. iii) Also, as Brooke LJ said in Cramp at [14], a court should be hesitant to intervene upon review in a housing appeal “if the appellant’s ground of appeal relates to a matter which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered.” iv) The impact of the public sector equality duty now contained in section 149 of the 2010 Act (as formerly set out insection 49A of the Disability Discrimination Act 1995 ) upon this general approach was explained by Wilson LJ in Pieretti v Enfield London Borough Council. Section 49A came into force shortly after judgment was given in Cramp. As Wilson LJ held, in a judgment with which the other members of the court agreed, that provision was intended to introduce a culture of greater awareness of the existence and legal consequences of disability (para. [28]) and this means that Brooke LJ’s dictum in Cramp at [14], set out above, now requires qualification as follows: “… In circumstances in which a reviewing officer under s. 202 (or indeed the initial decision-maker under s. 184) is not invited to consider an alleged disability, it would be wrong, in the light of s. 49A(1), to say that he should consider disability only if it is obvious. On the contrary. He needs to have due regard to the need for him to take steps to take account of it” (para. [32]). As Wilson LJ explained at [35], in the context of satisfying the duty of review under section 202 of the 1996 Act, the relevant question has now become: “did [the reviewer] fail to make further inquiry in relation to some such feature of the evidence presented to her as raised a real possibility that the appellant was disabled in a sense relevant [to the assessment to be made on the review]?”