Councils are often engaged in the difficult task of balancing competing rights. A recent case in England involving a disabled individual, noise nuisance and an allegation of discriminatory treatment is a prime example of how local authorities can manage challenging situations, by taking a rigorous approach to their duties.
The case details – Fisher, R (On the Application Of) v Durham County Council (2020)
Durham County Council's decision to serve an abatement notice for noise nuisance on Susan Fisher, who has a neurological disorder that causes her to make disturbing involuntary sounds, was found to be a proportionate form of discriminatory treatment.
Ms Fisher's challenge by judicial review of the council's decision to serve the notice pursuant to s.80(1) of the Environmental Protection Act 1990 (the EPA 1990) failed. The claimant's disorder means she shouts and screams loudly, often during the night. Ms Fisher lives in private rented accommodation and this noise was causing serious distress and unhappiness to her neighbours. The notice served on the claimant required her to stop making the noises. If she failed to comply with these requirements, she would be guilty of a criminal offence under s 80(4) of the EPA 1990 (subject to a defence of reasonable excuse).
What were the grounds of challenge against the council?
Ms Fisher wanted the High Court to quash the council's notice. Her first ground for challenge was that she was disabled (in line with s.6 of the Equality Act 2010 (the EA 2010)) and that service of the notice was unfavourable treatment because of something arising as a consequence of her disability. Therefore, the council's decision was unlawfully discriminatory in that it was unfavourable treatment by reason of disability (and contrary to s.15(1)(a) and s.29(6) of the EA 2010).
The second ground for challenge was that the council breached the Public Sector Equality Duty (PSED) in its decision to issue the notice (s.149 the EA 2010). There were two further arguments; service of the notice breached Ms Fisher's human rights (Article 14 of the European Convention on Human Rights, read with Article 8 and/or Article 1 of Protocol 1), and/or was irrational in the traditional public law sense.
Which court decides?
The council argued that Ms Fisher should not be allowed to raise a claim by way of judicial review, but should pursue it through her statutory right of appeal to the Magistrates' Court. The equivalent in Scotland is an appeal to the sheriff court. In other words, the claim should be refused as Ms Fisher had an alternative right of relief. Mr Justice Julian Knowles decided not to refuse the claim or relief sought on grounds of "alternative relief" because allowing the matter to be re-litigated before the Magistrates would simply be to "delay the final resolution of this troubling case".
While he fully acknowledged that a statutory remedy provided by Parliament should have priority, the judge decided that, in this case, there were good reasons for ruling on the matter now and he exercised his discretion to do so. The judge also found that how far grounds of appeal based on alleged contraventions of Part 3 of the EA 2010 could be raised on a statutory appeal in the Magistrates' Court was uncertain, and this was an additional factor that weighed in favour of him dealing with the issues on this application.
What did the court decide?
The judge found that Ms Fisher had not been the victim of unlawful disability discrimination. Applying the test for proportionality set out by the Supreme Court in Akerman-Livingstone v Aster Communities Ltd , the judge was "wholly satisfied" that the council had acted in a proportionate way towards Ms Fisher in pursuing an important and legitimate aim. Among other things, the judge said he accepted the council’s submission that service of the notice was a necessary precondition before High Court injunctive relief could be sought. (The equivalent in Scotland being the court granting an interdict). The judge also noted that the notice itself would have minimum or no impact on Ms Fisher and she could take reassurance from the council’s stance that criminal proceedings were unlikely.
He was satisfied that the council had complied with the PSED, even though it had not carried out an assessment in terms. “It seems to me that the council explored every viable option before concluding that service of the notice was necessary as a precursor not to criminal proceedings but to High Court civil injunctive relief. It was faced with the very difficult situation of a disabled person who could not help her disability, but who had the capacity to, and did, decline to cooperate with those who had a statutory duty to deal with the nuisance which that disability was causing. I consider that it got the balance of its duties entirely right.” Overall, the judge was satisfied that the council gave full appraisal to the claimant’s disability before taking the action it did under the EPA 1990. In relation to the claim of a breach of Article 14, the council’s actions were proportionate and in pursuit of a legitimate aim. The service of the notice was not absurd or irrational.
What does this judgment mean for councils in Scotland?
Scottish councils are advised to adopt the sensitive and intelligent approach to disability that Durham County Council did in this case, and to carefully record and document all steps taken. Scottish councils will also be aware of the regulatory regime that applies in Scotland to enhance performance of the PSED, as set out in The Equality Act (Specific Duties)(Scotland) Regulations 2012. It differs from (and is more demanding than) the Specific Duty Regulations that apply in England.
In particular, the PSED should be exercised with rigour and an open mind, rather than approaching it as a 'box-ticking' exercise. While adopting a standard format Equality Impact Assessment may or may not be appropriate in the circumstances of a particular case, making reference to the PSED and to the relevant criteria will reduce the scope for future attack upon councils' decisions and decision-making processes. Councils should not forget that the PSED is a continuing duty, which must be considered throughout the process in question. In the Fisher case, it appears to have been the careful presentation of the witness evidence and chronology of background events that persuaded the judge that the decision was not unlawful on any public law grounds. Councils in Scotland should be alive to the sense in taking such a rigorous approach.