The public sector equality duty and priority need

We are (or more accurately I am) a bit late on this one. It is quite important though and the fact I have only just written it up should not detract from that.

In Kanu v Southwark LBC [2014] EWCA Civ 1085, the Court of Appeal considered whether the public sector equality duty added an additional obligation on housing officers when they came to consider whether an applicant had a priority need. As you will all know the public sector equality duty is an obligation placed on public authorities by s.149, Equality Act 2010 to have due regard to the need to eliminate discrimination, harassment, victimisation; advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Broken down, when someone is disabled, the duty further requires an authority to have due regard to the need to take steps to take account of a person’s disability.

As you will also all recall in Pieretti v Enfield LBC [2010] EWCA Civ 1104 (our note here) the Court of Appeal held that the duty (under the previous equivalent provision s.49A, Disability Discrimination Act 1995) required a reviewing officer to carry out inquiries into an applicant’s disability that the Housing Act 1996 had not previously required, i.e. where the applicant had not raised the issue but the reviewing officer was on notice that there was a possibility that the applicant’s disability would be relevant to whether they were intentionally homeless or not.

In this case Mr Kanu suffered from a mental disorder which had caused him to experience psychotic depression. On occasions he had also had suicidal thoughts. At the date of his application he was receiving treatment for this disorder as an outpatient as well as medication. A medical adviser, employed by the authority, was of the view that his mental disorder would greatly inhibit his ability to care for himself. Mr Kanu relied on two additional medical reports from two consultant psychiatrists.  One thought that Mr Kanu was exaggerating his symptoms and could not be certain as to the extent of Mr Kanu’s mental disorder. The other was satisfied that Mr Kanu was suffering from psychotic depression but agreed it was hard to diagnose precisely because Mr Kanu’s accounts were not always consistent.

The authority none the less were not of the view that he had a priority need because, with the assistance of his family, he could cope with day to day living and would be able to fend for himself. This decision was subsequently overturned on appeal but the authority reached the same conclusion after the second review. Mr Kanu successfully appealed again to the county court. The Recorder found that decision was flawed because (1) the reviewing officer had failed to consider the fact that Mr Kanu’s mental health was deteriorating, (2) irrationally decided that Mr Kanu could access medication while homeless when there was no evidence that he could, (3) the evaluation that Mr Kanu could cope with the help of his family was “unfair” as opposed to irrational and (4) it failed to properly consider the public sector equality duty.

The authority successfully appealed to the Court of Appeal. The Court of Appeal dealt with the first three points relatively quickly. The evidence did not demonstrate that Mr Kanu’s mental health was worsening and also demonstrated that Mr Kanu could continue to access medication from his GP and the hospital where he would continue to be an outpatient. Moreover, the evaluation that the applicant would be able to cope if street homeless with the assistance of his family was not irrational and therefore could not be interfered with.

In respect of the public sector equality duty, the Court of Appeal accepted the authority’s contention that in a priority need case the public sector equality duty did not require it to do anything more or extra than it was required to do so under s.189 anyway, i.e. it had to consider whether the person’s disability meant that they were vulnerable. It added nothing to the duty under Part 7 to consider whether he had a priority need. By applying the Pereira test (i.e. considering whether an applicant is less able to fend for themselves when homeless than the ordinary homeless person so that injury or detriment will result) the authority is taking due steps to take account of the applicant’s disability. Section 149 did not require any additional analysis to that which was required by Part 7.

More controversially, in response to a submission by Mr Kanu’s counsel, the Court of Appeal also held that s.149 did not require the review officer to seek further medical evidence as to the effect of an applicant’s disability if the reviewing officer would not be required to under Part 7. This was because the duty added nothing to the obligations under Part 7.

Comment

I am frustrated by this decision. I am in complete agreement that the public sector equality duty added absolutely nothing to this case. What more inquiries could there have been? He already had two consultant psychiatrists giving an opinion. I would also go so far as to say the same for the vast majority of priority need cases. I am less certain, however, that it is right to say that in every case it won’t ever be relevant. In R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), at [85], it was held that s.49A (now s.149) requires the public authority to “have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the particular function under consideration.” This has become known as the duty of enquiry.

There is an interesting point (which appears to have been raised by Mr Kanu’s counsel although the judgment doesn’t do it justice if it was) as to whether the duty of enquiry under s.149 is more onerous than the duty under Part 7. The Court of Appeal, however, completely ducked the issue finding that the duty under s.149 added nothing to any obligation under Part 7.

I am not so sure that is correct though. The one crucial difference between s.149, 2010 Act and s.184, 1996 Act is that it is for the authority to determine the extent of its inquiries under the 1996 Act, subject to a Wednesbury challenge. While an authority must make all “necessary” inquiries it is for them to decide what those inquiries are and a court will not interfere with the decision even if further inquiries may have been sensible or desirable if the decision is not irrational. In contrast it is for the court to determine if s.149 has been complied with; the authority cannot hide behind a defence that it has acted reasonably. If the court thinks a further inquiry was necessary and it hasn’t been undertaken then the duty under s.149 has not been complied with. Does that mean that in practice s.149 may require more extensive inquiries than under Part 7 in certain cases? Apparently not. We have no idea why though. In my view that’s a shame because it is not obvious and it is not even clear that the Court of Appeal took the point.

We deserve better.

About S

S is a barrister, based in London, who practices predominantly in housing and local government law.
Posted in Homeless, Housing law - All.

21 Comments

  1. Interesting post, though please note that it’s inaccurate to say “Mr Kanu suffered from a mental disorder which had caused him to experience psychosis as well as hallucinations” since hallucinations are a symptom of psychosis (the others being delusions and illusions).

    Here’s some information on psychosis from mental health charity Rethink Mental Illness:

    http://www.rethink.org/diagnosis-treatment/conditions/psychosis

    In addition, the Time to Change guidance on language and terminology around mental health advise against using the word “suffer” when for instance “has” will do the job just as well and does not involve a value judgment:

    http://www.time-to-change.org.uk/news-media/media-advisory-service/help-journalists/mind-your-language

    • I’ve changed ‘as well as’ to ‘with’, as that is more accurate, thanks. ‘Suffered’ is taken directly from the wording of the judgment. And in the context of vulnerability under Part 7 Housing Act 1996, and the Pereira test for vulnerability, ‘suffer’ is probably the more accurate term.

  2. Giles thank you for being succinct and you have kindly answered a query I had regarding another point.

    ‘In respect of the public sector equality duty, the Court of Appeal accepted the authority’s contention that in a priority need case the public sector equality duty did not require it to do anything more or extra than it was required to do so under s.189 anyway, i.e. it had to consider whether the person’s disability meant that they were vulnerable’

    as this person is older than 18 probably as they are receiving ongoing health care – outpatients then s59 1(d) of the SVG 2006 would state that they are vulnerable – so if he is vulnerable then what next?

    • Oh, Safeguarding Vulnerable Groups Act 2006. Different definition of vulnerability. Person would still have to satisfy test of vulnerability under Part 7 Housing Act 1996. And also clearly the SVG doesn’t apply simply because they are receiving out-patient care, it only applies in the context in which they receive that service. So not a general definition of vulnerability that would change anything about homelessness.

  3. So what has to be overcome is Part VII s189 1(c) in this case. And 59 1(g) of the SVG does not apply either. So could one not use 2000/43/EC ?

    • A number of observations can be made following this decision. First, Part VII duties is a narrow remit to a wider social duty in eliminating prohibited discrimination under EQ public duties. Disability needs is not the same as selection for permanent housing through medical or vulnerability test with the former affecting a person’s needs on a short, medium and long term basis. Second, disability needs has a wider remit to those under Part VII namely, related duties and obligation under NAA 1948, CCA 1990 (Bernard v Enfield). Third, in the field of discrimination it is increasingly being recognised the need to eliminate both direct and indirect discrimination adversely affecting an individual or calls of persons.

      Third to demonstrate the impact of I attach a recent court case;

      [Then follows an account of what I think is Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin) although it didn’t mention the case name, and seems cut and pasted from somewhere else without acknowledging copyright. So I cut it. Not least because it makes no difference at all to the case in our post. NL]

    • I’m at a loss as to the point of your comment, to be honest. All that you say about the PSED is probably the case, but is irrelevant to the specific point and findings of the case in our post. The Lincolnshire case is not relevant, apart from the bare fact that it involves the PSED.

    • Giles I disagree with your post. For a number of reasons as explained above since the court’s decision is a narrow remit based on the medical reports finding that the applicant does not have priority need. However, it does not follow that in each and every case the authorites therefore have no duty to make PSED assessment or determine priority not least since the wider duties would have no effect ie eliminate discrimination etc.
      Second, a decision in making PSED assessment may not give priority but again it does not follow that a particular policy is therefore non-discriminatory direct or indirect see decisions in Bernard v Enfield, adverse impact in Linconshire case, indirect discrimination case inThlimmenos (Article 14)- the rational being like cases must be treated alike unlike cases differently the axiom of rational behaviour, not least since medical priority needs under part VII are different to disability needs, community care and the elimination of adverse discrimination in housing policy.

    • It is not my post. And those are exactly the issue with the judgment that the post raises. As it is phrased in the judgment, this is a point of general application rather than just on the facts of this case. Neither I nor S, who wrote the post, think that this can be right.

      Where I do disagree is that a broader ‘duty to eliminate discrimination’ could in any way take precedence over a s.184 decision. The duty may add something to the necessary enquiries, but so long as that is complied with, that is it.

      I don’t get the policy point. It is true that a policy may breach PSED, but I don’t see how this would bear on Part VII obligations. Any ‘policy’ set out by a local authority on homeless applications which was in breach of PSED would surely almost certainly by unlawful as failing to meet Part VII requirements anyway? Eg. requiring written applications, or applications at a particular office.

      Art 14 discrimination and the PSED are not necessarily the same thing. I’m a bit lost here. You seem to be arguing for a difference between Part VII priority need criteria, specifically vulnerability, and some kind of PSED obligation to provide housing for disabled. If so, you simply can’t stretch PSED or Art 14 that far, into a positive housing obligation.

  4. Was there sufficient material from which one could properly infer that the Council had properly appreciated and addressed the full scope and import of the matters, which they were obliged to consider pursuant to the PSED?

    Did they take into account the United Nations Convention on the Rights of Persons with Disabilities 2006 , Ratified 2009 and where they obliged too?

    Did they take in to consider Art 11 ‘situations of risk’?

    • Bryan, you are missing the issue with this judgment. The Court of Appeal said that the PSED did not add anything to the Council’s obligations under Part VII Housing Act 1996. So everything you mention is rather beside the point.

      But no, they are not obliged to take into account the UN Convention (or at least not yet).

  5. Art 28(d) United Nations Convention on the Rights of Persons with Disabilities 2006 , Ratified 2009?

    To ensure access by persons with disabilities to public housing programmes

    What does ensure mean in this context?

  6. Why didn’t Mr Kanu disclose his psychotic symptoms in Nov 11? I believe that would have been more likely to make him vulnerable, rather than waiting two months to seemingly divulge. I think this was perhaps his undoing here.

    • I don’t think so. He told the officer when making his homeless application. There was no change in the facts on which the Council found him not in priority need. If he had mentioned it a month earlier, it would have made no difference at all.

      And there is no point at all in speculating about why he didn’t raise it earlier.

  7. Having read the case law with commentary I am rather shocked and concerned about this case and highlight some disturbing findings.

    First, as stated even before reading the case the fact is there is a PSED on all cases as disability needs is different to medical or vulnerability test as the courts have made plain since disability is not defined under Part VII (cf HA 2004). PSED holds a wider duty to ensure equality to protected classes from discrimination, victimisation etc, and in some cases more advantageous favour.

    Second, it is unclear as to why the claimant is not considered vulnerable given the fact that he was an asylum or refugee seeker as such is entitled to be considered to be vulnerable on special grounds.

    Third, there is a clear contradiction between the first assessment finding and the reviewer officer who also conducted the second review after direction by the court, which is a clear violation of rules of natural justice; this cannot be cured by the courts as a substitute for independent review not least as the court does not a full history of the case which in its own words was a tick box exercised ‘review’.

    Fourth, it is clear that the tests applied in this case was wrong as there is a difference between ‘less able to fend’ (lower threshold) and high risk of harm’.

    Five, a reminder that PSED and adverse impact is required re meeting vulnerability test by otherwise disabled persons as opposed to medically vulnerable to determine whether discrimination in/direct of a particular policy or practice to those protected classes see Drayton v Lincolnshire, 2012 UKUT 489 AAC and *.
    Key to this is that disability needs are different to duties laid under Part VII in selecting permanent housing eg NAA 1948, Bernard v Enfield CAA 1990 involving human rights violation, *2012UKUT 489 AAC, (Byrne) Thlimmenos .

    In short like cases must be treated alike, unlike cases differently, the axiom of rational behaviour

    • Frednach

      This is making less and less sense to me, I’m afraid.

      There is no special ‘vulnerability’ under Part VII for asylum seekers, or those given asylum status. In fact, for asylum seekers, quite the reverse. They are excluded from Part VII.

      I am at a loss as to what you mean by the difference between the two reviews being against natural justice. They were conducted according to the statutory provisions. If you actually believe that this is a ground of challenge, I am afraid you are going nowhere very quickly.

      The Pereira test is whether the applicant “is, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment to him will result when a less vulnerable man would be able to cope without harmful effects”. There is no separate test of ‘high risk of harm’.

      I’m afraid your point 5 and conclusion don’t make sense to me. You still appear to be arguing that there is a separate disability based duty to house. There is no such thing.

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.