(FG) v Royal Borough of Kensington and Chelsea [2024] EWHC 780 (Admin)

High Court, 9 April 2024

The High Court has held that a local authority had not discriminated against a disabled tenant with a heightened sensitivity to noise and smell.

The Claimant (FG) was a disabled person who had been diagnosed with paranoid schizophrenia, generalised anxiety disorder and severe major depression with psychotic features. Her psychosis had resulted in her suffering from hallucinations and having a heightened sensitivity to noise and smell.

FG had been allocated a third-floor flat under the Housing Act 1996 by Royal Borough of Kensington and Chelsea (The Council) after she had become homeless. However, soon after moving in, FG complained to the Council about noise coming from the flat below her and a foul smell in her own flat, which she said were interfering with her ability to enjoy her property and hampering her recovery.

Following an investigation by the Council, it held that the issues raised by FG did not amount to statutory nuisances. FG subsequently obtained expert evidence which suggested works that could be carried out in order to address her concerns.

The Council decided against carrying out the works, as it would be expensive and disruptive. FG issued legal proceedings, alleging that the Council had breached its duties under the Equality Act 2010, discriminated against her by not carrying out the works and, thus, failing to make reasonable adjustments.

The High Court, in dismissing the appeal, held that no reasonable adjustments could be made. FG suffered was hypersensitive to noise and smell due to her psychosis. No reasonable adjustments could be made without great expense and reducing the size of the flat. Consequently, the Council had not breached its obligations under the public sector equality duty. The solution to the issue was for FG to apply for a transfer to another property.

A copy of the judgment is here.

R (Querino) v Cambridge City Council [2024] EWCA Civ 314

Court of Appeal, 27 March 2024

The Court of Appeal has upheld a Council’s review decision that a one-bedroom flat allocated to tenant who had separated from his wife was suitable despite evidence of a pending shared residence order for his children.

The Claimant (Mr Querino) had formerly lived with his wife and three children. After leaving the family home, he applied to Cambridge City Council (The Council) for assistance on the basis that he was homeless. The Council provided him with interim accommodation in a hostel. After accepting that it owed Mr Querino the main housing duty under the Housing Act 1996, the Council subsequently offered him a one-bedroom flat. Mr Querino stipulated to the Council that he needed more bedrooms to accommodate his children, whom he was seeking increased access to. The Council, however, said that the allocated flat was suitable, as the children were residing with their mother and that the flat would have no impact on their education or wellbeing.

Mr Querino accepted the offer of the flat, but also requested a review of its decision. In his representations to the reviewer, Mr Querino enclosed a report by the Children and Family Court Advisory and Support Service (Cafcass), which he considered supported his position and which had been prepared in connection with ongoing family court proceedings.

However, a Cafcass officer advised the reviewer that permission had not been granted by the Family Court to share the report with the Council, and that the reviewer should disregard its contents. The reviewer agreed and upheld the Council’s original decision, finding that the flat was suitable, particularly as for Mr Querino’s children all lived with their mother.

Mr Querino appealed to the County Court, arguing that the Council’s original decision had been deficient because it had not taken into account the Cafcass report. The County Court agreed, finding that a “minded to” letter should have been sent, allowing Mr Querino to ask the Family Court to release the report. The Council appealed.

The Court of Appeal, in allowing the appeal, held that the existence of the Cafcass report did not amount to a “deficiency” with the Council’s original decision. Consequently, there was no need for a “minded to” letter to be sent to Mr Querino. The reviewer had made it clear that a pending shared residence order would not affect her decision regarding the suitability of the flat. The Court held that the reviewer was entitled to take this view, and that there was no need to consider the Cafcass report or await a decision of the Family Court before making her findings around the flat’s suitability.

A copy of the judgment is here.

Unsdorfer v Octagon Overseas Ltd and others [2024] UKUT 59 (LC)

Upper Tribunal (Lands Chamber), 15 March 2024

The Upper Tribunal (Lands Chamber) has held that a manager appointed under the Landlord and Tenant Act 1987 could not be an “accountable person” for the purposes of the Building Safety Act 2022.

This case looked at whether a manager appointed by the First-tier Tribunal under section 24 of the Landlord and Tenant Act 1987 could be an “accountable person” within the meaning of section 72 of the Building Safety Act 2022.

Under the Landlord and Tenant Act 1987, Mr Unsdorfer was appointed as a manager of a large mixed estate, which included five “higher-risk” buildings, before the Building Safety Act 2022 had come into force. The Respondents, some of whom were landlords of those higher-risk buildings, applied to the First-tier Tribunal to determine who were “accountable persons” in respect of those buildings. The First-tier Tribunal held that a Tribunal-appointed manager could not be an “accountable person”, but gave Mr Unsdorfer permission to appeal.

The Upper Tribunal (Lands Chamber), in dismissing the appeal, held that a manager appointed under the Landlord and Tenant Act 1987 was not – and could not be – an “accountable person”. The Building Safety Act 2022 clearly provides that any new management order granted by the First-tier Tribunal, after the Building Safety Act 2022 came into force, cannot pass building safety responsibilities from the “accountable person” to the Landlord and Tenant Act-appointed manager. However, the Upper Tribunal also stated that this provision in the Act did not affect existing management orders that which pre-dated the Building Safety Act 2022 and that, for a period of time, there would be a temporary overlap between the duties imposed on Mr Unsdorfer by the management orders and the duties imposed on an “accountable person” unless, and until, that order expires or is varied.

This case is useful, as it provides clarity as to who is capable of being an “accountable person” and therefore who is ultimately responsible for the various building safety risk functions found in the Building Safety Act 2022.

A copy of the judgment is here.