Anti-social Behaviour, Crime & Policing Act 2014 – The Law

Section 15 contains a five stage test, providing that a person (A) discriminates against a disabled person (B) if:

(1) A treats B unfavourably (not “less favourably”);

(2) because of something arising;

(3) in consequence of B’s disability;

(4) A cannot show that the treatment is a proportionate means of achieving a legitimate aim; and

(5) A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

This contains a double causation test.  At the first stage, the Court must determine what caused the treatment. The Court must not fall into the trap of substituting “motive” (which is irrelevant) for causation: see Pnaiser v NHS England UKEAT [2016] IRLR 170 at 31b-c (see the summary of the relevant law at para 31).

The disabled person does not need to show that the “something arising” was the only or main cause of the unfavourable treatment. It is sufficient for it to be an effective reason or cause: Pnaiser at 31(c).

So section 15(1) will be established, subject to defences, where the impairment and an excluded condition form the reason for the treatment: see eg. Governing Body of X Endowed Primary School v Sendist and others [2009] EWHC 1842; [2010] ELR 1 at para 29.

At the second causation stage, the expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of s.15 of the Act, the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability: Pnaiser at 31(d).

This stage of the causation test involves an objective question (not depending on the thought processes of the alleged discriminator): Pnaiser at 31(f).

The statutory language of s.15(2) makes clear that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the ‘something’ leading to the unfavourable treatment is a consequence of the disability: Pnaiser at 31(h).

Section 136 EA 2010 is also relevant, because it provides for a reversal of the burden of proof in discrimination claims.  So if there are facts from which the court could conclude that a step taken was “because of something arising in consequence of a person’s disability” then it would be for the alleged discriminator to prove that it was not. If they could not do so, the burden would then be on them to show that it was nevertheless a proportionate means of achieving a legitimate aim.

In the case of s.15 (1) discrimination, there is a potential proportionality defence in s.15 (2). This provides that the treatment of the disabled person, rather than the steps taken by the landlord, must be justified.

The concept of proportionality contained in s. 15(2) contains a four stage test:

1.1.  is the objective sufficiently important to justify limiting a fundamental right?

1.2. is the measure rationally connected to the objective?

1.3. are the means chosen no more than is necessary to accomplish the objective?

1.4. Are the disadvantages caused disproportionate to the aims pursued?

Established principles in respect of the PSED – Public Sector Equality Duty

1. Section 149 provides: (NB full list of public bodies this applies to is set out at Schedule 19 of the Act)

“A public authority must, in the exercise of its functions, have due regard to the need to –

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic [which by subsection (7) includes disability] and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

…

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. …”

2. The principles of law applying to the nature and extent of the PSED are explained in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at paragraph 25. These include:

2.1. The duty is to have due regard to the need to achieve the goals identified in paras (a) to (c) of section 149(1).

2.2. The duty demands “a conscious approach” and that it should be performed “in substance, with rigour and an open mind.” ;

2.3. The PSED involves a duty of inquiry. The duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it.

Moreover, the PSED, particularly when viewed alongside the UN Convention on the Rights of Persons with Disabilities, imposes a positive obligation to advance equality of opportunity: see Bracking para 77.

1. A person has a disability if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day to day activities: section 6 EA. The definition is supplemented by Sch 1.
2. The “Guidance on matters to be taken into account in determining questions relating to the definition of disability” must be taken into account by an adjudicating body (defined to include a court or tribunal) in determining whether a person is a disabled person: Sch 1 Para 12.

Meaning of “impairment”

3. The Guidance advises on the “Meaning of Impairment”, at A3-4, concluding:

“Whether a person is disabled for the purpose of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities.”

4. A disability can arise from a wide range of impairments including fluctuating or recurring effects, such as epilepsy, or from respiratory conditions such as asthma: see Guidance A5.
5. The focus of attention required by the definition of disability is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do Goodwin v Patent Office [1999] ICR 302, 309E; and Guidance B9.
6. It is not material how the impairment is caused: see Power v Panasonic UK Ltd [2003] IRLR 151 approved in Governing Body of X Endowed Primary School v Sendist at para 23.

“Substantial adverse effect”

7. A substantial effect is one which is more than minor or trivial: see s.212 (1) EA.
8. The ameliorating effect of medication or treatment must be ignored when considering whether there is a substantial adverse effect on day-to-day activities: Sch 1 para 5.
9. “A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities”: Guidance B6.

“Long-term”

10. By Sch 1, para 2 EA, the effect of an impairment is long-term if:

(a) it has lasted at least 12 months;

(b) it is likely to last for at least 12 months; or

(c) it is likely to last for the rest of the life of the person affected.

11. If an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing, if it is likely to recur. Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of “long term”: Sch 1 para 2(2) EA; Guidance C5.
12. A person with a progressive condition is disabled, from the point at which the impairment has an adverse effect (i.e. without the need to prove a substantial adverse effect): see Sch 1 Para 8, B19 Guidance.

13.          The word “likely” within the definition of disability provisions is not a balance of probabilities standard. It means “could well happen”: see C3 Guidance.

Claimants often obtain injunctions on a without notice / ex parte basis.

There is a duty to provide full and frank disclosure when making these applications and the higher courts have reinforced this view time and time again.

Often these applications are being thrown into a judge’s busy duty list. We find the judges often grant injunctions based on a one sided, totally biased view and these applications and the advocacy supporting them are not adhering to the duty of candour. Further, there is an obligation on the Applicant to keep a full and accurate attendance note of the submissions made at court which is being ignored.

That means these injunctions should be contested on this basis alone as they may have been made on a faulty basis.

This requires utmost urgency as you only have 7 days to vary an ordered made at a without notice hearing. You can also appeal the decision which will give you 21 days. We would strongly advise getting hold of the transcript of the injunction application hearing to confirm what submissions were made, if any, and whether the full and frank disclosure was provided to the judge.

If the Applicant has breached their duty then the court can and should discharge the order. If the duty of full and fair disclosure is not observed the Court may discharge the injunction even if, after a full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.

The principles applicable in considering whether there was material nondisclosure in an application for a without notice freezing injunction were summarised by Cooke J. in Alliance Bank v Zhunus [2015] EWHC 714 (Comm), at paragraph 65 it was stated:

“The test of materiality of a matter not disclosed is whether it would be relevant to the exercise of the court’s discretion. A fact is material if it would have influenced the judge when deciding whether to make the order or deciding upon the terms upon which it should be made. The question of materiality is a matter for the court and not the subjective judgment of the applicant or his lawyers.”

St Vincent European General Partner Ltd v Robinson & Ors [2017] EWHC 3267 (Comm) full and frank disclosure was considered.

“In my judgment this was a further and inexcusable failure to properly analyse and disclose the claims being made and the potential defences.” [per Phillips J.]

Cooke v Venulum Property Investments Ltd [2013] it was held that it was inappropriate for the claimants to have made their original application ex parte. Courts have said time and time again that it is inherently unjust in hearing one party without the other party. On all applications made in the absence of the respondent, the applicant and their legal representatives owe a duty to the court to disclose all matters relevant to the application. This includes matters of fact or law which are or may be adverse to the applicant. The applicant or their legal representatives must specifically direct the court to passages in the evidence which disclose matters adverse to the application. If there is a failure to comply with this duty and an order is made, the court may subsequently set aside the order on this ground alone.

Al Rawi v Security Service [2012] 1 AC 531, SC, the Supreme Court held that, except where Parliament has provided otherwise, a respondent to an application has a right to know the case advanced by the applicant and to have fair opportunity to respond to it.

Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd’s Rep 428 at pp 437 states:

“The applicant must disclose all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the application. It is no excuse for an applicant to say that he was not aware of the importance of matters he has omitted to state. If the duty of full and fair disclosure is not observed the Court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.”