Vulnerability, ‘significantly’ and equality duties

S Butt v London Borough of Hackney. County Court at Central London. 22 February 2016 (PDF of judgment)

This was another in a number of county court judgments on section 204 Housing Act 1996 appeals which turned on the question of vulnerability after the Supreme Court decision in Hotak. (Others are here and here). In this appeal, the particular issues were whether the Public Sector Equality Duty (PSED) had been complied with, and then the approach to ‘significantly more vulnerable’.

Mr B had applied to Hackney as homeless, giving details of physical and mental health as

“Depression, anxiety, achalasia (a condition of the narrowing of the oesophagus), swollen ankles (with restricted mobility and constant pain.)”

There was medical evidence in support of this. After a negative s.184 on vulnerability and priority, and further medical evidence, Hackney’s s.202 review decision upheld this decision, in a 14 page letter.

The grounds of appeal which addressed Hackney’s specific comments (or alleged lack of them) on Mr B’s health issues were all dismissed. There was no error of law in failing to address relevant facts or taking into account irrelevant facts. Nor was there an error of law in the reviewing officer taking “the ability to manage one’s own affairs and/or carry out the basic activities of daily living as the test, or the primary test, of vulnerability”. An argument that

Apart from referring to the Appellant’s ability to manage the basic activities of daily living and/or his affairs, the Respondent has failed to give any or any adequate reasons why the Appellant is not vulnerable despite the cumulative effect of his multiple health problems and support needs.

was rejected as a hopeless ground.

But other grounds were more successful.

On the PSED, Mr B argued:

“The Respondent is in breach of its public sector equality duties set out at section 149 of the Equality Act 2010 in that the review decision fails to address the following aspects of that duty:
(i) whether the Appellant is ‘disabled’ as defined by section 6 of the Equality Act 2010;
(ii) if so the extent of his disability; and
(iii) apart from finding he is allegedly able to manage his affairs and/or the basic activities of daily living, there is no assessment of the likely effect of his disability when homeless, for instance, whether the effects of his disability may be exacerbated.”

HHJ Luba QC considered the import of paras 78 and 79 of Lord Neuberger’s judgment in Hotak. While the review decision stated:

“I can confirm that I have reached this decision with the equality duty well in mind and carried out this exercise in substance, with rigour, and with an open mind. I have focussed very sharply on 1) whether you are under a disability bracket or have another protected characteristic 2) the extent of such disability 3) the likely effect of the disability when taken together with any other features on you if and when homeless and 4) whether you are as a result vulnerable.”

However, Mr B argued that this was unevidenced by the rest of the decision letter, which showed no application of consideration of the PSED and its significance for Mr B’s conditions. No reasons were given as to the application of the PSED or if so, how the duty had been fulfilled.

HHJ Luba QC held

In respect of this function of a local housing authority, there is a requirement on the reviewing officer to determine whether the equality duty is engaged in the case he is dealing with or not.

That, in my judgement, in almost all cases, will require reviewing officers to spell out, at least in summary form in their decisions, what conclusions they have reached on the four matters set out at the end of paragraph 78 of the judgment in Hotak. What is not sufficient, as Lord Neuberger made clear in paragraph 78, is for reviewing officers’ decisions to simply contain:
“no more than formulaic and high-minded mantras.”

The review decision had a failure to give reasons, on those 4 matters in Lord Neuberger’s judgment – those being “(i) whether the applicant is under a disability (or has another relevant protected characteristic), (ii) the extent of such disability, (iii) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is as a result “vulnerable”.

In the instant case, the only evidence of any engagement by Mr Banjo with the requirements and obligations of the Equality Act 2010 is his recounting of the number of the statutory provision which includes the public sector equality duty and his reproduction, almost verbatim, in paragraph 21 of the material in paragraph 78 of Lord Neuberger’s judgment.
The reviewing officer has taken himself to the well but there is no indication that he has drunk from it. In my judgment that is sufficient to demonstrate error of law

The second successful ground was Mr B’s argument that:

“Hotak confirms the assessment of vulnerability is relative. The Respondent accepts the Appellant may be more vulnerable than the ordinarily vulnerable but denies he is significantly more vulnerable. However, contrary to HB -v- Haringey noted in December 2015 Legal Action page 46, the reviewing officer’s decision fails to quantify significantly and fails to explain why any difference in the Appellant’s vulnerability to the ordinary comparator is insubstantial.”

The definition of ‘significantly’ was far from clear:

the word significantly is a word with at least two potential meanings or shades of meaning. It could mean, as I have indicated, ‘something more than trifling’ or ‘more than insignificant’, or it could mean ‘something of real importance’ or ‘of real and significant extent’.

In the event, HHJ Luba QC held:

for present purposes, the ground of appeal before me is that the reviewing officer has failed to “quantify” significantly, or explain why the difference between Mr Butt’s condition and that of an ordinary person is not at least more than insubstantial. Indeed, paragraph 59 is pregnant with the suggestion that there is something more than insubstantial in the difference between Mr Butt and other persons.

I have read very carefully, a number of times, the whole of the reviewing officer’s decision to see if one can gleam from it any indication of the sense in which the reviewing officer has approached the question of significance or of, in this case, ‘significantly’.

This is not a task on which, in my judgement, I should have to embark. But it is right to record that certain of the language used by the reviewing officer does suggest that he is applying an approach which requires a substantial or extensive difference between the Applicant and that of others. I have in mind his reference in paragraph 62 to the term:
“This will be impossible for him.”

And then

Here again, in my judgement, the obligation to give reasons in section 203, taken with the obligation to direct himself in accordance with the judgment of Lord Neuberger in Hotak, required the reviewing officer to identify the sense in which he is using the term ‘significantly’. I accept entirely Mr Davies’ (for Hackney) point that that is not a task Lord Neuberger undertook for himself. That has left the courts and reviewing officers having to do the best they can in this class of case. Doing the best I can, I am satisfied that here there is an error of law established and that insufficient reasons have in this respect been given.

On these two grounds, the appeal was allowed.

Comment

Here, clearly expressed, is the difficulty for local authorities after Hotak. Councils have long been used to a cut and paste approach to the Pereira test, and that has clearly carried over in to the post Hotak period. But it is not enough to simply state that you have complied with a duty – that must be evident n the decision and reasons. If the PSED is engaged, it must be clear how it has been satisfied.

Moreover, the fact that  nobody knows what ‘significantly’ means, in Lord Neuberger’s ‘significantly more vulnerable than an ordinary person,’ is not an excuse for councils (or as we have seen, Mr Perdios on outsourced reviews) to simply say ‘not significantly enough’ – the officer’s understanding of what ‘significantly’ means must be stated in the decision.

Of course, the real battles over the meaning of ‘significantly’ are yet to come in the court of appeal, but for the moment, it should be clear that council’s decision makers can’t leave this as a fuzzy, undefined term of discretion. Any decision on vulnerability must say what is understood by ‘significantly’ and why the applicant has failed to meet that threshold.

No doubt councils will consider this to be unfair. But it is their decision to make, and their decision to explain.  Part of that explanation is now what the decision maker understands by ‘significantly’.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All and tagged , , .

5 Comments

  1. Oh dear, if HHJ Luba is feeling lost at sea, what chance does anybody else have?

    As far as PSED goes, I suspect LAs are (with cause) feeling baffled. The SC is saying in one breath that it doesn’t matter if the duty is explicitly addressed but also that it is very important for it to be carefully and anxiously considered.

    Nobody seems to be suggesting that the PSED either widens or narrows the definition of vulnerability (surely its not logically possible for the simple fact that one’s health renders them disabled within the meaning of EA10 to turn a non-vulnerable person into a vulnerable one) – but at the same time, if it doesn’t impact on the test, why is it material whether the LA considers it or not?

    A Court of Appeal decision can’t come soon enough.

  2. On the significantly point…If the officer had defined ‘significantly’ as ‘of real importance’. No doubt he would have been criticised for not setting out the meaning of ‘real’ or what the importance was said to be relative to. Its a perfectly ordinary English word capable of being understood without being specifically defined. Seems wrong and circular to expect an officer to further define words which are themselves defining the statutory language.

    If the guidance from the SC is fuzzy, that (given the restricted jurisdiction of the county court, the nature of the appeal and the burden of proof) should be resolved in favour of the LA with Appellant free to appeal to a higher court for clarification. imho anyway.

    • But the ‘ordinary English word’ has a range of meanings (or a scale, perhaps). And post the SC, it is of course the key test for priority through vulnerability – so at the heart of the decision (and very much in the County Court jurisdiction). The issue in this case is not whether the officer had ‘defined’ significantly, but that he had failed to give reasons for deciding why the vulnerabilites were not ‘significantly’ more.

      If the decision is to be appealed further, I can see no basis whatsoever for arguing that the default position for the county court should be to find in the LA’s favour in the meantime.

    • The basis would be that to succeed on the appeal the person bringing it has to establish an error of law. If the bit of law that the appellant is relying on to establish the error is unclear, then it is (or should be) harder for them to succeed on the appeal.

    • No, because the issue is whether the respondent has committed an error of law. And in this instance, the lack of reasons was an error of law, regardless of what any eventual finding on the meaning of significance is. So perfectly reasonable for appeal to be granted.

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