Disabled man offered local authority flat accessible only by stairs refused permission to amend Equality Act case

About this case:

• Citation:
  [2026] SC DUM 32
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Mungo Bovey KC

Trevor Simpson raised an action in August 2021 against Dumfries and Galloway Council for declarator that the defender was in breach of the Equality Act and damages for the breach. The cause was sisted at the pursuer’s instance in November 2021 to allow ingathering of documents and re-enrolled in late 2025, by which time the pursuer sought to make two changes to the basis of claim.

The case was heard in Dumfries Sheriff Court by Sheriff Mungo Bovey KC. Lazarowicz, advocate, appeared for the pursuer and Thom, solicitor, for the defender.

No other alternative

The pursuer was noted as suffering from debilitating back and leg pain that affected his mobility, along with muscle spasms which affected him several times a week. In or about 1 September 2020 he presented as homeless to the defender, engaging their duties under section 28 of the Housing (Scotland) Act 1987. He requested a ground floor property, presenting an occupational therapy report from 2011 referring to his disabilities and housing needs, but was accommodated in accordance with the defender’s Common Allocation Policy in a third-floor flat in Lockerbie accessible solely by stairs.

As a result of his mobility issues, the pursuer was unable to leave his home on certain days. The defender’s officers told him at their meeting with him that he would have to accept this accommodation or he would be “back on the streets”, and that there was no other accommodation they could offer him. The pursuer averred that he only accepted the property because he felt he had no other alternative, and that he had been indirectly discriminated against on the grounds of disability.

The proposed minute of amendment made two principal changes to the pursuer’s case. Firstly, it deleted the provision, criterion or practice of the defender’s allocation policy and replaced with “a practice of securing accommodation for homeless persons such as the pursuer, which was not suitable for those persons’ requirements.” The second amendment introduced a new ground of claim of discrimination in terms of section 15 of the Equality Act by requiring him to live in an unsuitable property.

In its answers to the minute, the defender stated that it did not know or admit that its staff had told the pursuer that he did not accept the offer of the third-floor property he would not be given any other accommodation. Furthermore, the officer who conducted the interview with the pursuer had died in September 2022 and thus no direct evidence could be sought on this point.

Lengthy process of amendment

In his decision, Sheriff Bovey said of the first proposed amendment: “No further specification of this practice or when it was applied is provided. It is of, at least, doubtful relevancy: As Lewis LJ observed in R v London Borough of Tower Hamlets (2025) ‘practice’ here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. It may have only been applied to one person but there will always be something more than that application to justify the use of the term ‘practice’. Here there is nothing.”

He added: “For our purposes at this stage, the issue is prejudice to the defender. It seems to me that the proposed averment would open the defender to having to investigate how it was dealing with homeless applications from disabled people in 2020 or to discovery in that regard. Either way, it would be a very different prospect from the current case which is simply a reliance on their allocation policy albeit also unspecified as to any particular provision.”

Considering the second amendment, Sheriff Bovey said: “The fact that the officer who delivered the decision on the allocation died during the sist is relevant. This is particularly so because the proposed new ground of action introduces for the first time the motive of the decision maker. It seems to me that the introduction of this case of doubtful relevance at this stage would predictably require a lengthy process of amendment and debate and enquiry on the part of the defender in respect of which a key witness is unavailable.”

He concluded: “The pursuer’s case is that he was allocated the property on a third floor on about 1 September 2020, offered accommodation on a first floor without level access on 29 January 2021 and signed a permanent tenancy agreement on 7 May 2021. During his time in the property, by reason of his disability he found it difficult to mobilise up and down the stairs and as a result, was not able to leave his home ‘on certain days.’ Having regard to the limited and undetailed harm averred, I consider that the balance between the parties favours the defender on this matter.”

The proposed amendments were therefore refused.