Lomax v Gosport Borough Council (2018) EWCA Civ 1846

This was a second appeal on a homeless application by Ms L to Gosport.

Ms L “suffers from a number of both physical and mental problems. She is wheelchair bound and is confined to bed for large portions of the day. She requires 24-hour care, including intimate care which for the time being is provided by her former partner.” She had the tenancy of a housing association property – a two bedroomed bungalow in sheltered accommodation, which was adapted for her needs.

The property is situated in an isolated rural part of Dorset. There is no public transport or voluntary transport that could take a wheelchair, meaning Ms L was physically isolated in the property. Her family, who are willing and able to provide the necessary support, live in Gosport, some 70 miles distant.

Ms L applied as homeless to Gosport, on the basis that it was not reasonable for her to remain in her present accommodation.

Gosport refused the application on the basis that Ms L was not homeless as it was reasonable for her to remain in her present accommodation. This was upheld on review and the first instance s.204 appeal was dismissed.

Ms L appealed to the Court of Appeal.

Gosport’s review decision accepted that a move would probably help Ms L’s health and that she would benefit from being less isolated from her family. However:

The reviewing officer next turned to the physical aspects of the accommodation and concluded that “your property is perfectly suited to your complex physical needs”. He also noted that Ms Lomax had strong security of tenure; and that the rent was affordable.

What seems to have tipped the balance was his assessment of the general circumstances in relation to housing prevailing in the Gosport area. The essence of what he said on that topic was this:

“I have considered the housing situation in Gosport in general, and the prevalent negative imbalance between supply and demand of housing. There are many people living in housing that is not ideal for their needs in the Gosport area. I provide some data around the Council’s housing register by way of example and in order to provide some context to this statement, but households seeking accommodation in the private sector also face similar barriers to them obtaining ideal accommodation.

There are currently 639 households registered for housing that better suits their needs. 259 of those households require a 1 bedroom property like you do. 221 of the households on the waiting list are assessed as needing to move because their current accommodation is having a medical or social impact on them….

This goes to show that the number of people, the vast majority of whom live in the Gosport area, who live in accommodation that is not ideal for them. The imbalance between supply and demand means that the consequent wait for accommodation is, although not ideal, common in the Gosport area, and it is against this context that it might be reasonable to expect a person to continue to occupy their current property even when not ideal….

The general circumstances in relation to housing prevailing in the Gosport area are such that accommodation is relatively scarce, and I attach a significant amount of weight to this in deciding as to the reasonableness of you continued occupation of your current property.”

29. The reviewing officer then moved on to consider the Equality Act 2010 and the public sector equality duty (“the PSED”). He was satisfied that Ms Lomax had a disability, and that she was disabled to a significant extent. He acknowledged that her occupation was “affected by your disability and that there is an impact on your health that comes from remaining in your current property”. As part of that he had:

“… considered the physical elements of your disability and that your property is suited to your physical needs, and I have also considered the relationship between your limited mobility and the consequent difficulties you have with engaging in the community and accessing the support of your family. I have also considered that, although telephone and other forms of distant contact might be the norm for many people, as a person with specific mobility and care needs this form of contact is likely not as valuable to you as face to face contact and support from family would be.”

The Court of Appeal, in Lord Justice Lewison’s lead judgment, took a brief detour to note that that first instance appeal Judge had taken a wrong approach to ‘disability’ under the Equality Act

I should preface my discussion of that decision with some remarks about what seem to me to be errors in the judge’s approach. Having referred to parts of section 149 she said at [8]:

“Subsection (7) lists the relevant protected characteristics, one of which is disability but, I mark, not illness.”

I find this cryptic sentence hard to understand. The definition of “disability” in section 6 does not distinguish between physical impairment or mental impairment. I see no reason why an illness cannot amount to an impairment. Section 6 focusses on whether the result of a physical or mental impairment is such as to have a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. If an illness has such a result, that would amount to a disability. The judge appears to have carried her thought through to [33] where she said:

“… one was looking here at a disability which was, in essence dealt with by the physical needs that the appellant had which were completely provided for by the accommodation in which she was living. Her social desire to move to Gosport, whereas fully understandable, is not as such a disability.”

This observation overlooks the medical evidence that not only was her isolation exacerbating Ms Lomax’ mental condition, but that even the provision of physical support for her in her current location was not sustainable in the long term; but would be capable of being provided by her family were she to move to Gosport. All counsel agreed, in my judgment correctly, that this part of the judge’s judgment was wrong.

On the appeal, Ms L argued that

the reviewing officer took a view which was in part too broad and in part too narrow. It was too broad because he looked at the generality of persons on the council’s housing list. Even where he tried to separate out those who needed to move because their current accommodation was having a medical or social impact on them, he failed to home in on the severity of Ms Lomax’ disability and the exceptional impact that living in her current accommodation was having on her health.

It was too narrow because the reviewing officer looked only at the council’s own housing stock and did not look at what might be available from other providers of social housing, or in the private sector. I reject the last part of this submission. The review decision said that the reviewing officer had considered the housing situation in Gosport “in general”. The statistics from the Council’s housing list were given “by way of example”; and the reviewing officer also stated that households seeking accommodation in the private sector were finding similar barriers.

However, on the issue of the ‘too broad’ view, the Court of Appeal was more persuaded that the review officer had compared Ms L with the generality of people on the council’s housing list, and that this w as generalised practice or policy that did not take account of her particular disabilities. As such this would not be a fulfilment of the Public Sector Equality Duty and amount to indirect discrimination.

I agree with Mr Hodgson (for Ms L) that a generalised reference to the situation of people on the council’s housing list, who may or may not have disabilities, let alone disabilities as severe as Ms Lomax’, does not have the required sharp focus on Ms Lomax’ particular disabilities and the consequences for her of remaining in her current accommodation; and the particular reasons why continuing to occupy her current accommodation would continue to damage her mental health (and in due course her physical health). The reviewing officer says no more than that the accommodation occupied by those households “is having a medical or social impact on them”. A social impact is not itself a disability. Nor did the reviewing officer comment on the severity of that medical or social impact.

As Mr Drabble (for the EHRC) submitted, sections 149 (3) (b) and (4) require a local authority to have regard to the duty to take steps to meet the different needs of a disabled person as compared to those who are not disabled. Moreover, those steps may involve treating a disabled person more favourably than a person who is not disabled. The comparative exercise that the reviewing officer carried out did not, in my judgment, comply with these duties. Nor did the reviewing officer ever ask himself the question whether Ms Lomax’ situation was one which was out of the ordinary or out of the norm. These were significant errors which led the reviewing officer to conclude that he should give “considerable weight” to the general circumstances in relation to housing in the Gosport area. Had he properly applied the PSED in his comparative exercise he would probably have reached a very different conclusion.

Contrary to Mr Lewin’s submission (for Gosport) I do not consider that the review decision is saved by the reviewing officer’s subsequent discussion of the PSED. In the first place, that discussion was conducted against the background that the reviewing officer had already concluded that he should attach a significant amount of weight to general housing conditions in Gosport. Second, although he acknowledged that there was “an impact on your health” from remaining in the current property he overlooked or downplayed the highly material and unchallenged evidence that her mental health was being positively damaged by remaining where she was; and the medical opinion that an immediate move was required. This was compounded by his subsequent statement that he acknowledged a medical and social need to move “in due course”.

Further, the review officer had failed to address that Ms L’s accommodation, in its location, was a cause of depression and that reaming was causing a deterioration in her mental condition, and that physical support would not be available if the situation persisted.

The review officer had considered that the two main factors were the ‘physical suitability’ of the current property and the ‘prevailing housing situation in Gosport’.

As to the former, it was only suitable if its location was ignored. As to the latter, the reviewing officer repeated his statement that there were “many households living in accommodation that is not ideal for them”. Although Mr Lewin submitted the contrary, I think it inescapable that the reviewing officer did regard Ms Lomax and the other households as being “in the same unfortunate boat”. For the reasons I have given, I consider that that evaluation was erroneous.

Appeal allowed. Review decision quashed. In a brief concurring judgment, Lord Justice Coulson noted

the need for the reviewing officer to undertake a comparison between Ms Lomax’ accommodation needs and the accommodation needs of people without her disabilities. In my view, that comparison is missing from the reviewing officer’s evaluation.