CA-2024-002185 - [2025] EWCA Civ 1049

The appellant contends that the respondent failed to comply with its obligation under section 149 to have due regard in the exercise of its functions to the equality matters specified in section 149. Ms Monaghan relied on case law to establish the requirements of section 149.

This issue can be dealt with shortly. First, there is the question of whether there has been any breach. Section 149 applies to a public body “in the exercise of its functions”. It is important to identify the relevant functions. Here, as appears from the claim form, and repeated in the skeleton argument in the High Court, the function in question was the discharge by the respondent of its duties to the appellant under the 1996 Act during the period from October 2022 to 25 August 2023.

The general approach to whether the duty has been complied with is well established and it is not necessary to elaborate upon the extensive case law. In broad terms, the duty under section 149 is a duty to have due regard to the specified matters in the exercise of its functions not a duty to achieve a specific result. The duty is one of substance, not form, and the real issue is whether the relevant public authority has, in substance, had regard to the relevant matters, taking into account the nature of the decision and the public authority's reasoning (see, e.g, Baker v Secretary of State for Communities and Local Government (Equality and Human Rights Commission intervening) [2009] PTSR 809 at paragraphs 36–37, and Bracking [2014] Eq LR 60, at paragraph 25 ). As Lord Neuberger of Abbotsbury PSC observed at para 74 of his judgment in Hotak v Southwark London Borough Council (Equality and Human Rights Commission intervening) [2015] PTSR 1189 "the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment".

The short answer in the present case is that it is clear from the nature of the function being exercised, and the actions that the respondent undertook, that it did have regard to the equality considerations specified in section 149 of the Act when exercising its functions in relation to the appellant during the material time. It accepted on 5 October 2022 that it owed a duty to secure suitable accommodation for the appellant. Its actions in recording information on the database were concerned with ensuring that it knew the needs of this appellant. It knew, as appears from the e-mail sent on 13 October 2022 by one of the respondent’s housing officers, that a request for a transfer was under consideration because the appellant was a single mother with a young child under 12 months of age. It had due regard to the relevant matters when it was seeking to secure accommodation which it considered suitable for the mother with her young child.

Secondly, while I have dealt with the question of breach, the reality is that this issue is academic. The question arose in connection with the exercise of functions under the 1996 Act about the provision of accommodation. There is no longer any live issue between the parties about that as the appellant accepts that the respondent has complied with its duty under section 193(2) duty since the end of August 2023. The issue relates to past events occurring between October 2022 and the end of August 2023. Given the issue is no longer live and is fact specific, raising no issue of general importance, the Court could simply have declined to deal with the issue: see R (AY) v Vale of Glamorgan Borough Council [2025] EWCA Civ 671. I would dismiss the appeal on Ground 6.