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.