Suitability and PSED

London Borough of Hackney v Haque [2017] EWCA Civ 4

In which the Court of Appeal grapple with the application of the Public Sector Equality Duty to decisions on suitability of accommodation provided under s.193 Housing Act 1996 (in satisfaction of the full housing duty).

Hackney had accepted a full housing duty to Mr Haque as he was vulnerable by reason of physical disability and mental ill health. Mr H suffered from “severe chronic cervical and lumbar spine problems affecting his physical as well as his mental health profoundly”. Mr H was given a single room on the third floor of a hostel as temporary accommodation. Mr H sought a review of suitability once the acceptance of duty was made (about 7 months after a second homelessness application).

Unsuitability was alleged because:
i) Its cramped size restricted his movement and thereby exacerbated his back, shoulder, leg and neck pains;
ii) Its cramped size, coupled with a “No Visitors” policy applied in the hostel, left him isolated and prevented him from receiving visits from his children, which exacerbated his depression and anxiety;
iii) The hostel’s lack of laundry facilities meant that he was required to wear dirty clothing, since his physical disability prevented him from carrying loads of laundry to a launderette; and
iv) As a result of all the above, he had been required to increase his dosage of anti-depressant medication.

After receiving information and a medical report from Dr Keen (without examination of Mr H), Hackney’s review officer, Mr Banjo replied, upholding suitability

i) Room 315 was of ample size, were it not excessively cluttered by Mr Haque’s possessions, some of which he could put into storage offered by the Council at reasonable cost.
ii) Mr Haque could use local parks, local restaurants and eateries to meet his family and friends, or see them in their own homes, and did not therefore need an exception from the No Visitors policy in order to avoid having his depression exacerbated by loneliness.
iii) The nearest launderette was sufficiently proximate for him to be able to reach it with moderate loads of laundry, and the No Visitors policy was to be mitigated in his case by permitting his family to visit him to collect and return laundry.
iv) The council’s independent medical advisor had concluded that his condition was such that a flat served by one flight of stairs and a lift was suitable for him, and that the evidence did not sufficiently demonstrate that his current accommodation was exacerbating his condition, which had been long-standing.

Mr Banjo concluded as follows:

“In reaching this decision I have had regard to the Equalities Act 2010 and I am sorry for the disappointment that this decision may bring you.”

Mr B then brought a s.204 appeal, which which was successful on one point, the Circuit Judge finding that Mr Banjo’s review decision “failed to address what is required by the section 149 duty, as explained in Hotak, or that if he did so, he has expressed himself in such a way as to be insufficient to discharge his obligation imposed by section 203 (of the Housing Act) to give reasons for his decision”.

The Circuit Judge’s judgment continued

“48. In my judgment, the first ground of appeal succeeds. The terms of the paragraph 78 of the Hotak judgment, read together with the duty to give reasons for a reviewing officer’s decision, (themselves contained in section 203 of the Housing Act 1996), oblige a reviewing officer to be transparent in his treatment of the issues of whether an applicant does or does not have a protected characteristic and as to whether the public sector equality duty is in play and with what effect. In my judgment, that will in almost all circumstances, require a reviewing officer to spell out, at least in summary form, his decisions on those matters. Indeed, he should go further and spell out what follows from an affirmative finding that a protected characteristic is established and that the public sector equality duty is in play.

49. In this particular reviewing officer’s decision there is not, in my judgment, the material to demonstrate those matters. I accept that in some rare cases a reviewing officer’s decision might be upheld, even though these matters are not clear on the face of the decision letter, if the pith or gist of what is required can be garnered from the wording used.”

Later, at paragraph 51 he said, in relation to Mr Banjo’s reasons:

“There is no suggestion in the reviewing officer’s decision that he took up ‘different spectacles’ or thought he had to modify his normal stance at all in respect of the Code of Guidance nor any indication that he viewed the factual material before him through the prism of the public sector equality duty as it applies to a person who may have a protected characteristic of disability.”

Hackney appealed.

It was generally accepted that the PSED was engaged in a s.202 suitability review, though i what way was disputed.

The question, in large part, was the significance of Lord Neuberger’s judgment in Hotak v Southwark London Borough CouncilKanu v Southwark London Borough Council [2016] AC 811, at paras 78 and 79

“78. In cases such as the present, where the issue is whether an applicant is or would be vulnerable under section 189(1)(c) if homeless, an authority’s equality duty can fairly be described as complementary to its duty under the 1996 Act. More specifically, each stage of the decision-making exercise as to whether an applicant with an actual or possible disability or other “relevant protected characteristic” falls within section 189(1)(c), must be made with the equality duty well in mind, and “must be exercised in substance, with rigour, and with an open mind”. There is a risk that such words can lead to no more than formulaic and high-minded mantras in judgments and in other documents such as section 202 reviews. It is therefore appropriate to emphasise that the equality duty, in the context of an exercise such as a section 202 review, does require the reviewing officer to focus very sharply on (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”.

79. Mr Underwood QC argued that the equality duty added nothing to the duty of an authority or a reviewing officer when determining whether an applicant is vulnerable. I quite accept that, in many cases, a conscientious reviewing officer who was investigating and reporting on a potentially vulnerable applicant, and who was unaware of the fact that the equality duty was engaged, could, despite his ignorance, very often comply with that duty. However, there will undoubtedly be cases where a review, which was otherwise lawful, will be held unlawful because it does not comply with the equality duty. In Holmes-Moorhouse [2009] 1 WLR 413, at paras 47-52, I said that a “benevolent” and “not too technical” approach to section 202 review letters was appropriate, that one should not “search for inconsistencies”, and that immaterial errors should not have an invalidating effect. I strongly maintain those views, but they now have to be read in the light of the contents of para 78 above in a case where the equality duty is engaged.”

The Court of Appeal held, after warning of the need to not take Supreme Court decisions as if they were statute”

Parts of both paragraphs 78 and 79 of Lord Neuberger’s judgment in Hotak are plainly and precisely directed to the conduct of a vulnerability assessment rather than, for example, to a suitability assessment (as here) or to the question whether an applicant has made himself intentionally homeless (as in Pieretti). Thus the four-stage approach calling for sharp focus in paragraph 78 is plainly aimed at assisting the reviewing officer in deciding whether the applicant is vulnerable. Equally, Lord Neuberger’s acceptance that “in many cases” a reviewing officer might discharge a PSED even if ignorant of it was expressly directed to the conduct of a vulnerability assessment.

However, what was required in general is “the sharp focus required of the decision maker upon the relevant aspects of the PSED where it is engaged by the contextual facts about each particular case”. The relevant factors for suitability for each case would not be restricted to those ‘thrown into focus’ by s.49 Equality Act 2010, but also the other factors such as those in the statutory guidances.

In this particular case, the PSED required of the review officer (at para 43):

i) A recognition that Mr Haque suffered from a physical or mental impairment having a substantial and long term adverse effect on his ability to carry out normal day to day activities; i.e. that he was disabled within the meaning of EA s. 6, and therefore had a protected characteristic.

ii) A focus upon the specific aspects of his impairments, to the extent relevant to the suitability of Room 315 as accommodation for him.

iii) A focus upon the consequences of his impairments, both in terms of the disadvantages which he might suffer in using Room 315 as his accommodation, by comparison with persons without those impairments (see s. 149(3)(a)).

iv) A focus upon his particular needs in relation to accommodation arising from those impairments, by comparison with the needs of persons without such impairments, and the extent to which Room 315 met those particular needs: see s. 149(3)(b) and (4).

v) A recognition that Mr Haque’s particular needs arising from those impairments might require him to be treated more favourably in terms of the provision of accommodation than other persons not suffering from disability or other protected characteristics: see s. 149(6).

vi) A review of the suitability of Room 315 as accommodation for Mr Haque which paid due regard to those matters.

Taken as a whole, the review decision did show that the review officer appreciated that Mr H suffered from relevant disabilities, thus meeting i) above. The response did focus on the specific aspects of Mr H’s impairments that were relevant and on the consequence of those impairments, following on from the clear linking of disabilities and suitability issues in Mr H’s solicitor’s review submissions, thus meeting ii) and iii). The review officer’s focus on whether the disadvantages were made good:

clearly demonstrated a rigorous focus upon Mr Haque’s particular needs, and whether they called for accommodation different in its size, situation or accessibility to visitors than that provided by Room 315, for the purposes of stage (iv) of the required analysis. Thus for example he asked himself, at paragraphs 7, 8 and 11 of the Decision whether his particular need to relieve his chronic pain called for larger accommodation, or for him to de-clutter Room 315 to make more space for himself, and the means whereby the Council might assist him in de-cluttering, by offering storage space at reasonable cost for as long as Mr Haque continued to live there.

The review decision also met v) in the sense that the whole review was directed towards the issue of whether Mr H’s disabilities “deserved”(sic) more favourable treatment.

Overall then, the decision did meet the requirement at vi) as a review of suitability that paid due regard to these matters, despite it coming across as tough and insensitive decision-making, even suggesting that an isolated person with no visitors allowed, suffering from depression, should get rid of his television to ‘declutter’.

The phrasing of the Judge below was wrong, to the extent that it suggested that he had based his analysis

upon a supposed general principle “in almost all circumstances” requiring the reviewing officer to spell out in express terms reasoning about whether an applicant does or does not have a protected characteristic, whether the PSED duty is in play and if so with what precise effect, even though the adoption of such a disciplined approach may in many cases put the issue of compliance with the PSED beyond reasonable doubt.

Further, there was no set standard for reasons given, instead it depended on the circumstances of the case. There was no freestanding obligation to give reasons under s.149 Equality Act, so the usual s.203(4)(a) Housing Act 1996 duty to give reasons applied. There was no rigid standard for reason to demonstrate PSED compliance.

Appeal allowed.

Comment

There was clearly some reluctance in the court of appeal in reaching this decision.  McCombe LJ’s short addendum to the main judgment of Briggs LJ, although concurring, states that:

I confess to having had hesitation as to whether Mr. Banjo’s decision sufficiently demonstrated adequate regard for the requirements of the PSED. I was concerned in particular about Mr Haque’s position in the light of the “No Visitors” policy and the comments made about the cluttering of the room with Mr Haque’s personal possessions, especially his television set. It seemed to me that in Mr Haque’s case, where his symptoms of disability were not only physical, but included depression, the importance of access to friends and relatives and (if he felt the need) to a really good TV set might need specific attention in discharge of the PSED.

Meanwhile Briggs LJ clearly felt the need, in the face of the harshness and apparent lack of sympathy of the review decision, to set out at 57 that:

Judicial notice can be taken of the fact that housing authorities experience grave constraints in finding appropriately located suitable accommodation for those applicants demonstrating priority need, and that many of them deserve more favourable than purely average treatment by reason of vulnerabilities, including protected characteristics of a type which engage the PSED. The allocation of scarce resources among those in need of it calls for tough and, on occasion, heartbreaking decision-making, but having to say no to those deserving of sympathy by no means betokens a failure to comply with the PSED.

For clarity, this is on the difference between a bare, or base suitability and something more. There should not be any sense that the fundamentals of suitability are changed by resource constraints.

As to what this means for review decisions and the PSED?

Well, it does seem to limit Lord Neuberger’s ‘four stages’ (at 78 of Hotak) to vulnerability decisions.

But in turn, the six stage test set out at para 43 of the judgment is clearly generalisable to all suitability review decisions where a relevant disability may be at issue and I suspect that this will indeed happen.

While a certain lip service is paid to Lord Neuberger’s suggestion that a review could be compliant with the PSED even if the PSED was not expressly addressed, or where the officer was ignorant that the Equality Act was engaged, it is hard to see any suitability review not made with awareness of the EA & PSED being engaged clearing the test at v)

A recognition that (an applicant)’s particular needs arising from those impairments might require him to be treated more favourably in terms of the provision of accommodation than other persons not suffering from disability or other protected characteristics: see s. 149(6).

After all, in the absence of the PSED & EA, there is no basis for ‘more favourable treatment’ as an option.

But, overall, the emphasis is on substance, not form, The review decision must demonstrate that there has been an engagement sufficient to satisfy points i) to vi), but the explanation and reasoning, it appears, does not have to contain express reference to the language of the Equality Act 2010, or for the findings under the EA & PSED to be spelled out.

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 , , .

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