McMahon v Watford Borough Council (2020) EWCA Civ 497 (and Kiefer v Hertsmere Borough Council )

We saw the approach of the Court of Appeal to the operation of the Public Sector Equality Duty (PSED) in possession proceedings in Luton Community Housing v Durdana. Now, in these joined appeals, the Court of Appeal turns its attention to PSED in homeless decisions and reviews.

In both appeals, the County Court Circuit Judge had quashed the review decisions on section 204 appeals on the basis that the review decisions had not sated in terms whether the applicant was disabled within the meaning of the Equality Act 2010. Both councils appealed.

The Court of Appeal begins by emphasising that vulnerability for the purposes of section 189 Housing Act 1996 priority need and a PSED assessment are not the same thing.

Although there is a substantial overlap between a vulnerability assessment and the PSED there are also differences. The most important difference, to my mind, is that whether a person has a disability is to be assessed without reference to measures being taken to correct or treat the disability, whereas vulnerability is to be assessed taking into account such measures. As Lord Neuberger put it in Hotak at (64):

“As Lord Wilson JSC pointed out, this conclusion is supported by considering an applicant with a physical or mental condition which, if not treated, would render him vulnerable, but which can be satisfactorily treated by regular medication. If such an applicant, when homeless, would be perfectly capable of visiting a doctor to obtain a prescription and a pharmacist to collect his medication, and then of administering the medication to himself, it would be unrealistic to describe him as “vulnerable”, when compared with an ordinary person when homeless. Mr Paul Brown QC tried valiantly to meet that point, but it does not appear to me that it is answerable.”

In addition, in Panayiotou v Waltham Forest London Borough Council (2017) EWCA Civ 1624 (our report), the Court of Appeal had rejected an analogy between disability and vulnerability – see para 57.

The Court of Appeal notes that in Hotak v Southwark LBC (2015) UKSC 30, Lord Neuberger had described the PSED as ‘complementary’ to the assessment of vulnerability.

This is a key point. The PSED is not a free-standing duty. It applies to the way in which a public authority exercises its functions. Those functions derive from other laws. (…). The relevant function in this case was to determine whether the applicant in question was “vulnerable” for the purposes of section 189 (1) (c). In addition, as many cases have emphasised, the PSED is not a duty to achieve a result, but a duty to have due regard to achieve the goals identified in section 149.

Lord Neuberger’s formulation at para 78 of Hotak, that

“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”.”

did not mean that there was sequential four step test to be followed.

It would be extraordinary if, having dismissed the debate about whether the assessment of vulnerability was a two-stage or a one-stage test as “arid”, Lord Neuberger intended to lay down a rigid four stage test which had to be applied in all cases engaging the PSED. That would, indeed, be to force reviewing officers into a straitjacket. In addition, if the application of a four stage sequential test had been essential, the Supreme Court could not have upheld the review decision in Mr Kanu’s case.

Indeed in the Kanu review decision, there had been no specific finding whether Mr Kanu had suffered from a disability within the meaning of the Equality Act, but the Supreme Court had upheld that review decision.

As per the judgments in Pieretti v Enfield LBC (2010) EWCA Civ 1104 (our note) and Haque v Hackney London Borough Council (2017) EWCA Civ 4 (our note) the PSED in relation to a homelessness decision “is confined to disabilities relevant to the particular decision” and no specific findings have to be made about whether the applicant does have a disability for the purposes of Equality Act 2010, or statements on the precise effect of the PSED.

It follows that where a vulnerability assessment has been conscientiously carried out, it is likely to also comply with the PSED.

In the case of a vulnerability assessment, there is substantial overlap between the requirements of the homelessness code and the PSED. In addition, any vulnerability assessment will be concentrated on the particular facts of the case in question. What the reviewing officer must consider is whether a person is vulnerable as a result of “mental illness or handicap or physical disability”. It is difficult to see how that task can be performed without a sharp focus on the extent of the illness, handicap or physical disability; and its effect on the person’s ability to deal with the consequences of homelessness. What matters is the substance of the assessment not its form. Provided that a reviewing officer appreciates the actual mental or physical problems from which the applicant suffers, the task will have been properly performed.

The PSED assessment may well have a bearing on how a duty is discharged, but that is a distinct step from finding vulnerability.

What differs is the way in which that duty, once triggered, is satisfied. It may bear on the question whose case, among all those in priority need, should be dealt with first. It may bear on the nature of the accommodation to be offered. The accommodation must be suitable, having regard to any disability. So a person who is both vulnerable and disabled will have to be provided with accommodation more tailored to their particular needs.

In both the cases under appeal, the review officers had addressed PSED issues. In McMahon:

what Mr Perdios did was to consider carefully whether Mr McMahon’s problems (both individually and cumulatively) impacted on his ability to carry out normal day-to-day activities and, more particularly, (whether or not they were disabilities as defined by the Equality Act) whether they made him “vulnerable” for the purposes of section 189 (1) (c). That was the bottom line and, as I have said, the only statutory question that Mr Perdios was required to answer.

and in Kiefer

It is clear that Ms Kaissi said that Mr Kiefer’s ability “to carry out daily activities has not been restricted by his leg and wrist pains.” That is a reference both to the wrist pains and to the claudication. So far as his depression and low mood were concerned, she said that she was satisfied that Mr Kiefer’s “ability to manage daily activities has not been affected by the conditions.” Her overall conclusion was that “Mr Kiefer demonstrates an ability to manage daily activities with no support required”.

In my judgment that is a clear finding that Mr Kiefer was not relevantly disabled. There was no impairment that had a substantial and long-term effect on his ability to carry out normal day-to-day activities.

Both appeals were allowed, with the Court of Apeal commenting:

One of the striking features of both appeals is that there is no evidence that any of the various medical conditions (whether physical or mental) has any real effect on the ability of either Mr McMahon or Mr Kiefer to carry out normal day-to-day activities.

All this goes to show that there is a real danger of the PSED being used as a peg on which to hang a highly technical argument that an otherwise unimpeachable vulnerability assessment should be quashed. I do not consider that that is why the PSED exists. It is not there to set technical traps for conscientious attempts by hard-pressed reviewing officers to cover every conceivable issue. Nor is it a disciplinary stick with which to beat them.

Comment

This is, in many ways, a revamped version of Lord Neuberger’s statement in Holmes-Moorhouse v Richmond upon Thames London Borough Council (2009) UKHL 7, that – as put in this judgment:

“In examining the reasons for a decision, the court should adopt a benevolent approach. It should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach. Its assessment must be realistic and practical.”

However, against this is the requirement under the PSED for a ‘very sharp focus’ and the duty “must be exercised in substance, with rigour, and with an open mind”. As Lord Neuberger notes in Hotak, in a paragraph not quoted in full in this judgment:

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.

A mere formulaic recitation of the PSED criteria would not meet the requirements for a sharp focus, and substantive exercise. But at the same time, it is clear, as per Lord Neuberger in Hotak, that while a vulnerability review conducted in ignorance of the PSED may still, accidentally, meet its requirements, it cannot be taken for granted that it will do so and to take that approach would be to undermine the PSED itself.

I think that in its efforts to combat a perceived over-technicality of challenge, the Court of Appeal leans too far towards saying that a vulnerability review, if adequately conducted, will meet the PSED duty –  particularly at para 67. But the point remains, that the PSED requires a sharp focus, and a rigorous substantive exercise.