The Equality Act 2010 (‘EA 2010’) came into force on 1 October 2010 in England, Wales and Scotland, consolidating and in some respects extending the existing disparate provisions of anti-discrimination law. The EA 2010 identifies those characteristics in respect of which it is unlawful to discriminate (‘protected characteristics’) and provides a unified approach to discrimination based on simplified concepts. There are certain exceptions to the unified approach. Disability discrimination, for example, has the following distinctive concepts: discrimination arising from disability and the duty to make reasonable adjustments.

The protected characteristics covered by the EA 2010 are:

2.10 Particular focus is dedicated in this section to the definition of disability as a protected characteristic because it is often disability which arises as a feature of anti-social behaviour cases, though the other protected characteristics may also be relevant. Victims of anti-social behaviour are sometimes targeted because of a learning disability or a physical condition. In some cases, the perpetrator takes advantage of or targets a person’s disability. Victims with a disability are often less able to cope and in greater need of support because of their condition. The Pilkington case prompted wider concern that many police forces were failing to properly identify hate crimes motivated by disability and thus treating them as low-priority anti-social behaviour. Much of the abuse had been targeted at Fiona’s Pilkington’s children who had learning difficulties which were serious enough to qualify as a ‘disability’ within the meaning of the EA 2010. Enforcement agencies will need to have regard to victims with a disability, but also perpetrators of abuse who may have mental health conditions or behavioural disorders which may be linked in some way to their conduct. Where enforcement action is taken and defended or challenged, some defendants contend that their behaviour has been caused or contributed to by a disability and that the enforcement action is unlawful discrimination or has been taken without compliance with the public sector equality duty.

2.11 Disability is defined in s 6 of the EA 2010 and has a broad meaning. It is defined as a physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.^[23] ‘Substantial’ means more than minor or trivial.^[24] ‘Impairment’ covers, for example, long-term medical conditions such as asthma and diabetes, and fluctuating or progressive conditions such as rheumatoid arthritis or motor neurone disease. A mental impairment includes mental health conditions (such as bipolar disorder or depression), learning difficulties (such as dyslexia) and learning disabilities (such as autism and Down’s syndrome).^[25] Some people, including those with cancer, multiple sclerosis and HIV/AIDS, are automatically protected as disabled people by the EA 2010.^[26] People with severe disfigurement will be protected as disabled without needing to show that it has a substantial adverse effect on day-to-day activities.^[27] In the determination (which may be a contested issue) of whether or not a person has a disability, there is a disregard for medical treatment and other measures to correct or treat an impairment.^[28]

Certain conditions are not to be regarded as impairments for the purposes of the EA 2010.^[29] These are:

One difficulty for housing officers and practitioners is that, in a borderline case where it is not clear whether or not a person’s symptoms or conditions amount to a disability within the meaning of the EA 2010 (an issue which more frequently arises with mental rather than physical disability) they are not medically qualified to make the judgment themselves. In those cases, officers should therefore: (a) consider what evidence they have of a perpetrator’s disability, and make appropriate further enquiries;^[31] and (b) even if after those enquiries there is insufficient information to sustain a conclusion either way, make a file note which sets out: (i) whether and why they consider their actions are proportionate; and (ii) that they have had due regard to the public sector equality duty (see 2.24 below), both on the assumed basis that the person against whom enforcement action is taken has a disability. The decision may and should be reviewed in the light of any further enquiries made and information supplied about the person’s illness.

Ultimately, if a challenge to enforcement action or possession proceedings is litigated, and the issues of: (a) whether a person has a disability; and (b) the causal connection between the disability and the anti-social conduct relied upon for the enforcement action or possession proceedings, remains contested, expert evidence (usually through the instruction of a single joint expert) will be required and the matter will be determined by the court.

2.13 The defined categories of prohibited conduct are:

2.14 Section 13(1) of the EA 2010 provides that a person (A) discriminates against another (B), if because of a protected characteristic, A treats B less favourably than A treats or would treat others. To prohibit direct discrimination is to require people to be treated in the same way regardless of their sex, race, gender, disability etc.

To understand whether there has been direct discrimination, a two stage approach is often adopted by the court:

The following example of direct discrimination is given by the Equality and Human Rights Commission (‘EHRC’):^[34]

2.15 Section 19 of the EA 2010 provides that a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (‘PCP’) which is discriminatory in relation to a relevant protected characteristic of B. A PCP is discriminatory in relation to a relevant characteristic of B’s if:

The concept of a ‘provision’, ‘criteria’, or ‘practice’ is broad.^[38] By way of example in a housing context, a requirement for all tenants or prospective tenants to complete an online application to be considered for a mutual exchange or for an allocation of property, which does not make exception for those whose disability prevents them from using a computer, may constitute indirect discrimination unless it can be justified. The fact that the requirement is not written down, but there is a practice of not offering a paper-based application or an alternative means of eliciting the relevant information, would not prevent the court from concluding that there was a discriminatory PCP.

The following example of indirect discrimination is given by the EHRC:^[39]

2.16 Under the Disability Discrimination Act 1995,^[40] although capable of being justified, detrimental treatment for a disability-related reason was unlawful discrimination. Controversially, the House of Lords, in Lewisham London Borough Council v Malcolm,^[41] adopted a narrow construction of the law so that the breadth of the protection of discrimination law was significantly limited. The decision in Malcolm was a departure from the position which had previously been understood in the Court of Appeal decision in an employment context in Clark v TDG Ltd (t/a Novacold Ltd).^[42] The EA 2010 seeks to restore the scope of that protection by reversing the decision in Malcolm by s 15(1), which states:

The following example of discrimination arising from disability is given by the EHRC:^[44]

The decision has proven controversial for a number of reasons, including: (i) the importation from housing law to an assessment of a defence based on discrimination the ‘seriously arguable’ threshold, a procedural step not otherwise provided for in the EA 2010; (ii) the rejection of the structured approach to the analysis of a claim or defence based on discrimination law and in circumstances in which the burden of proof is reversed by the EA 2010;^[47] and (iii) the suggestion in the Court of Appeal’s substantive analysis of proportionality that the strength of the countervailing interest of the social landlord in the recovery of possession of a property to which it is otherwise entitled applied with equal force to a defence based on discrimination.

2.17 The laws regulating disability discrimination are designed to enable the disabled to enter as fully as possible into everyday life. This requires not merely outlawing discrimination against the disabled; it also needs those who make decisions affecting the disabled to take positive steps to remove or ameliorate, so far as is reasonable, the difficulties which place them at a disadvantage compared with the able bodied. To that extent therefore, the disability law accommodates a measure of positive discrimination.^[48]

The EA 2010 recognises that bringing about equality for disabled people may mean in practical terms changing the way in which services are delivered, providing extra equipment and/or the removal of physical barriers.

This is the ‘duty to make reasonable adjustments’.

If an organisation providing goods, facilities or services to the public or a section of the public, or carrying out public functions, or running an association finds there are barriers to disabled people in the way it does things, then it must consider making adjustments (in other words, changes). If those adjustments are reasonable for that organisation to make, then it must make them.

The duty is ‘anticipatory’. This means an organisation cannot wait until a disabled person wants to use its services, but must think in advance (and on an ongoing basis) about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, a mobility impairment or a learning disability.

An organisation is not required to do more than it is reasonable for it to do. What is reasonable for an organisation to do depends, among other factors, on its size and nature, and the nature of the goods, facilities or services it provides, or the public functions it carries out, or the association it runs.

Section 20 of the EA 2010 sets out in generic terms the content of the duty to make reasonable adjustments. It identifies three requirements where the duty applies.

2.22 Section 26 of the EA 2010 provides a common definition of harassment, of which there are three forms, defined in s 26(1)–(3).

By s 26(1)–(2), a person (A) harasses another (B) if A engages in:

In deciding whether conduct has the effect referred to above, each of the following must be taken into account:

2.23 Section 27 of the EA 2010 provides that a person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act.

The following are protected acts:

2.24 Chapter 1 of Part 11 of the EA 2010 introduced the ‘public sector equality duty’ under s 149.^[51] As part of that duty, public authorities^[52] and any person who exercises public functions, must have ‘due regard’ to the need to: (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the EA 2010; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

The duty is a duty to have due regard. It is not to achieve the statutory goals; see Dyson LJ in R (Baker) v Secretary of State for Communities and Local Government^[53] in relation to the predecessor provision concerning race equality:

The duty applies not only to the formulation of policies, but also to individual cases. It may require a decision-maker to take steps to establish if a person has a protected characteristic to ensure that the duty can be discharged: Pieretti v Enfield LBC.^[58] In the context of disability, this assumes particular importance, because those with a disability may not be adept at identifying or communicating that fact as a relevant consideration.^[59]

The duty is therefore likely to apply to a public authority decision-maker who is subject to the duty and who is considering whether to exercise their statutory powers to tackle anti-social behaviour, either to enforce against or to protect a person who has a disability, for example, by seeking an injunction or pressing for possession on a mandatory anti-social behaviour ground. An example of reliance by a tenant of a local authority upon breach of that duty as a defence to a claim for possession on the basis of the disability of a member of his household, and of the court’s approach to the continuing nature of the duty is Barnsley MBC v Norton^[60] which is considered at Chapter 9, 9.41.

Public authorities should therefore ensure that officers have been given training on the meaning of the public sector equality duty and its requirements. Where the decision-maker knows or suspects that a person in relation to whom enforcement action is to be taken, or for whose protection it is to be taken, has a disability, reviews should be conducted and records should be kept demonstrating conscientious consideration of the imperatives set out in s 149 of the EA 2010. Officers should approach such reviews open-minded as to whether, as a consequence of the application of those considerations, a different approach might be justified.