R (Fisher) v Durham County Council — statutory nuisance and the Equality Act 2010

On 21 May 2020, a challenge brought by Susan Fisher, a woman with a neurological disorder, which causes her to make involuntary vocal outbursts and physical movements, against the decision of Durham County Council to serve her with a noise abatement notice was dismissed.

The Environmental Protection Act 1990 provides that where a local authority is satisfied that a statutory nuisance exists or is likely to occur or recur, it may serve an abatement notice requiring certain steps to be taken to abate or restrict the nuisance. A failure to comply with such notice is a criminal offence and a person served with such notice may appeal to the Magistrates’ Court.

Ms Fisher lived in privately rented property in the council’s area. In or around 2014, she began to suffer from a medical condition that caused her to make involuntary sounds and noises. She shouts and screams loudly, often during the night and this noise was often offensive and distressing to her neighbours. The local authority decided that these outbursts amounted to a statutory nuisance and served her with an abatement notice requiring her to stop making the vocalisations.

Ms Fisher issued judicial review proceedings, seeking to quash the notice on the grounds that:

1. It unlawfully discriminated against her contrary to ss.15 and 20 of the Equality Act 2010,
2. It was a breach of the Public Sector Equality Duty found in s.149 of the 2010 Act;
3. It breached her human rights and was irrational.

Discrimination arising from a disability is prohibited by the Equality Act 2010. Such discrimination occurs where a person discriminates against a disabled person because of “something arising in consequence” of the disability and it cannot be shown that the discrimination is a proportionate means of achieving a legitimate aim. In addition, the Public Sector Equality Duty requires all public authorities to consider how their policies or decisions affect people with protected characteristics. A person who alleges that there has been a breach of the s.149 duty must bring that claim by way of judicial review.

The local authority denied any breach of the 2010 Act and, as a preliminary issue, contended that Ms Fisher should have appealed the notice to the Magistrates’ Court rather than seeking judicial review. The High Court found for Ms Fisher on the preliminary issue. It was clear that the case raised issues of wider importance that were suitable for determination in the High Court.

The court dismissed the claim. It was common ground that Ms Fisher was disabled and that the service of the notice amounted to discrimination. The court found that the discrimination was, however, justified. The council had tried to manage the impact of her outbursts in numerous ways. It had offered her various support services as well as an offer to discuss re-housing her to more suitable accommodation. The service of the notice was a last resort. Whilst there had not been any assessment under s.149, Equality Act 2010, the judge considered the relevant principles set out in Luton Community Housing Limited v Durdana [2020] EWCA 4445 and concluded that the local authority had, in substance, complied with the Public Sector Equality Duty. The claimant’s application for permission to appeal was refused.

If you would like to discuss these issues in more detail, please do not hesitate to contact Sian Evans, Partner on 0151 242 6821 or sian.evans@weightmans.com.