Equalities on the 14th floor

Chatokai v Salford City Council. Manchester Civil Justice Centre, 11 April 2017 (Not reported elsewhere)

This was a s.204 Housing Act 1996 appeal of Salford’s review decision that Mr C was not homeless. The central issue was whether Salford’s review officer had adequately addressed her public sector equality duty under s.149 Equality Act 2010.

Brief facts. Mr C was the tenant of Salix Homes, a social landlord. He had a one bed flat on the 14th floor of a tower. He applied to Salford as homeless on the basis that it was not reasonable for him to remain in his current property.

Mr C is disabled due to various mental and physical health issues. He

suffers from epilepsy – of a tonic/clinic variety. He experiences grand mal fits. On average, these fits occur twice a week – but more frequently, when he is stressed. He has autistic spectrum disorder in the form of Asperger’s Syndrome. He suffers from adult attention deficit hyperactivity disorder (ADHD). He suffers symptoms of anxiety, depression (having previously been diagnosed as suffering bi-polar disorder) and chronic post-traumatic stress disorder (PTSD). He suffers from Da Costa syndrome, an anxiety condition that affects his cardiac output (neuraesthenia).

The PTSD arose following a serious assault and knife injures in 2007.

Physical conditions included:

chronic mechanical back pain due to a degenerative back condition (confirmed on MRI scanning) as well as chronic bilateral hip and knee pain. He experiences radicular pain down his right side. His left knee appears to be the worse and this causes his gait to alter as he uses a walking stick on his right side – he walks in an asymmetrical fashion – this in turn, exacerbates his low back pain. He experiences what has been referred to as ‘severe motor co-ordination difficulties’ which have aggravated his mobility difficulties and led to numerous falls both in his flat and on the staircases when required to access them. Whereas he was assessed by an OT in July 2012 as being able to negotiate one flight of stairs, by 2016, his condition had deteriorated and he was not able to manage this.

Mr C had to use a mobility scooter to go any distance outside the block of flats and was completely unable to leave the flats if the lift broke down, which was not infrequently.

Further, Mr C is out and openly gay.

Accusations were made against him in 2007, when he arrived in the Salford area, that he was a paedophile. Such a rumour spread into the local community and the Appellant was the subject of repeated taunts and threats – it was also a reason why he appears to have been targeted in the 2007 assault. A confidential note from a PC was provided to the Respondents in readiness for the ‘homelessness’ assessment review on 15th November 2016  – her conclusion was to the following effect:

“…I have no doubt that his perceived reputation follows him and will be very difficult to shake off. This does make him vulnerable to the offences he has already been the victim of and leaves him further open to abuse…”

Mr C was fearful of further abuse and attacks in the vicinity of or in the flat. There was the finding of:

a Social Services’ assessment, the Appellant was ‘at risk’ at the property. Moreover, in previous possession proceedings, the landlords, ‘Salix Homes Limited’, had admitted and agreed, (as in turn, District Judge Hovington recorded in a later court order on 10th August 2016) that the property was “not suitable for the Defendant’s occupation”. The evidence suggested not only was the Appellant at risk of being subjected to violence at the property, there had been actual violence in the context of incidents which had been reported to the police.

All of this was made clear to Salford in the homeless application and review submissions. The review decision effectively restated a ‘minded to’ letter, which said, in the Circuit Judge’s precis:

  1. She doubted that adult community healthcare services had concluded that the Appellant was ‘at risk’;

  2. Whilst there was evidence to support threats of violence historically having made against the Appellant, there was nothing recent – in fact, in living on the 14th floor he was more protected from a burglary;

  3. Housing Options had refused to accept any duty under Section 193 of the 1996 Act, which she found relevant;

  4. Whatever order Salix Homes consented to, that did not answer the question of homelessness, where there is a lower threshold of suitability;

  5. Previous alternative properties had been offered to the Appellant which he had refused;

  6. On the most recent occupational assessment (July 2012), it was judged the Appellant was capable of managing one flight of stairs – further evidence would be necessary before different conclusion could be reached if it was asserted the Appellant’s health had significantly deteriorated;

  7. Any incident of established violence was away from the property – it was not therefore established as ‘probable’ the Appellant was at risk;

  8. In considering section 177 of the 1996 Act and the test therein and the Homelessness Guide for Local Authorities, the test was not met;

There was also mention of the size of the waiting list for a 1 bed flat. The review officer added one line to the effect that “…it is my opinion that this decision would not be at odds with the requirements of the Act…” (the Equality Act).

Mr C’s appeal was on the basis that the review had failed to have regard to the PSED as it impacted on making homeless decisions under Part VII Housing Act 1996, and specifically that the review officer had failed to consider Mr C’s position

through the prism of his subjectively experienced dysfunction – so that she could demonstrate, as the ‘equality duty’ required, that she was alive to this new culture to show greater awareness as to the effects of disability on those unfortunate enough to experience it.

The Circuit Judge took Lord Neuberger’s comments on the PSED and Part VII decisions at 74 and 75 of Hotak in this sense

the obligation was to have due regard to the need to achieve the relevant goals with the requirement to bring about a culture of greater awareness of the existence and legal consequences of disability (my emphasis). Moreover, he went on to cite with approval, the remarks of Aikens LJ that the duty must be exercised in substance, with rigour, and with an open mind. However, provided there was a rigorous consideration of the duty, any reviewing court should be very slow to interfere.

In respect of Salford’s review decision, the Circuit Judge found:

the fact and effects of the Appellant’s protected characteristics – or the effects of his multiple dysfunctions, one on the other, seen through the prism of his disability, is absent. Specifically, there is no discussion on the likely compounding and synergistic effects of the Appellant’s overlaid protected characteristics nor any attempt to view these matters from the perspective of his disablement. This can only be viewed as a significant vitiating factor. In my judgment, (the review officer)’s review does not come close to satisfying the requisite legal test in applying the ‘equality duty’.

To amplify the above, the reasonableness or otherwise of a tenant’s actions, in this context, has to be seen and judged in the light of the tenant’s protected characteristics, if the 2010 Act and the ‘equality duty’ is engaged. Here, the Appellant has profound psychological and intellectual disabilities. Asperger’s syndrome, seen in the context of an individual who suffers significant anxiety and depression, remove any assessment of the Appellant from that of the ordinary tenant. A disabled man, dependent on a scooter for mobility (acknowledged to be wheelchair bound), with limited independent mobility (save with a stick) with little capacity to negotiate any stairs, living on the 14th floor of a block of flats, which, it was agreed, had a higher than average incidence of breakdown (even assuming the service provider’s callout compliance was “within target”) very reasonably might feel significantly anxious – in the Appellant’s case, in the event he had a fit or a fall or was acutely unwell (for example due to cardiac failure). Adding into that, the compounding effects of Asberger’s Syndrome and his overlaying depression, with his worries about racist or homophobic taunts from his neighbours – it is entirely easy to understand why he would harbour real anxiety and fear in occupying such accommodation and feel very reluctant to leave it.

If, added to the foregoing, one then adds in, the Appellant’s chronic pain and his deteriorating physical function (his function having clearly deteriorated since 2012), the resulting package of dysfunction, given the nature of the ‘equality duty’, suggested very strongly, it was reasonable, viewed objectively, to regard the Appellant’s current accommodation as entirely unsuitable. Yet, the approach of (the review officer) was to take each of the relevant factual questions, address them serially and individually – downplay their significance, then fall back on the high threshold for a finding of ‘homelessness’ – in a sentence, rejecting any counteracting effects. Such an approach, in my judgment was quite inadequate. There was an absolute need for (the review officer) to specifically consider, from the Appellant’s perspective, as an Asberger’s sufferer, how he was able to cope with the level of his adversity, given all his difficulties on the facts presented. On all these issues, (the review officer)’s assessment serially failed – to conclude “…it is my opinion that this decision would not be at odds with the requirements of the Act…” was almost meaningless.

The review decision was quashed. Submissions invited on whether it should be remitted, or the court to exercise its discretion and substitute its own decision.

 

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 +.

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