Tenure is not a medical matter

In Kannan v Newham LBC (2019) EWCA Civ 57, Lewison LJ once again (after Lomax our note) has considered the effect of the public sector equality duty on a review, this time concerning suitability.  Mr Kannan and his household had lived in “temporary” accommodation for 2 1/2 years.  The flat was accessed by an external metal staircase of 14 steps, and had a bath, but no shower. Mr Kannan had mobility difficulties following “extensive reconstruction surgery”, which meant that he had serious difficulties with the outside steps and was unable effectively to use the bath.  The reviewer upheld the original decision that the flat was suitable for the household.  The decision turned on the medical evidence before the reviewer and the reviewer’s handling of the PSED, but I suspect it will also become as well-known for Lewison LJ’s pithy observation about the Hotak approach to the PSED, at (9), that

It must be emphasised that Lord Neuberger was instructing the reviewing officer how to go about his task. He was not providing a reviewing officer with a defensive ritual incantation.

And, he adds later, at (24), the recitation of the formula “is no substitute for actually doing the job” #ouch.

The review decision was inadequate because the reviewer misunderstood the basis of the NowMedical assessment (those who “know” NowMedical assessments may have to read that sentence a few times).  Dr Thakore, for it is he, had originally assessed the household as needing a ground floor flat as a housing need (which appeared to have been for a Part 6 allocation).  On reassessment of the specific temporary accommodation, Dr Thakore had offered the following eliptical advice: “Tenure is not a medical matter.  Temporary accommodation would not be medically unacceptable”.  The reviewing officer repeated that advice and said that, although uncomfortable and inconvenient, the steps did not render the accommodation unsuitable.

Lewison LJ noted that the first Thakore assessment should have been the starting point and that the second assessment meant that “quality of tenure did not impact on his [ie Dr Thakore’s] earlier assessment” (19).  In any event, one could not divide permanent/temporary as a binary – which, no doubt, our Parliamentarians might appreciate, and which ties in with the increasing academic attention to time – because “Suitability is a question of degree: not one of classification into rigid categories” (20).

The reviewing officer had also downgraded Mr Kannan’s severe pain he felt after climbing the stairs to “uncomfortable and inconvenient”; and no attention had been given to the bathing facilities.  Lewison LJ also repeats his concerns expressed in Lomax:

While it is legitimate for a reviewing officer to consider housing conditions in the locality, when he does so through the lens of the public sector equality duty it is not adequate simply to refer to the generality of persons who are not living in ideal conditions. The reviewing officer did not consider whether any of those who were not living in ideal conditions had disabilities. That, too, shows that there was not the required sharp focus on Mr Kannan’s disability and the impact it had on his housing needs.

Whether or not this implies a roll-back from the frankly awful decision in Hackney LBC v Haque (our note), it does seem that the kind of generic phrases about the PSED one sees in decisions need to be at least followed through in the decision itself.

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