Homelessness decisions and the public sector equality duty: a victory for substance over form

01 Jan 2018

Housing, Public Law and Judicial Review

Hackney LBC v Haque [2017] EWCA Civ 4, judgment of the Court of Appeal (McCombe, Beatson & Briggs LJJ), Tuesday 17 January 2017.

A judge had been wrong to hold that the public-sector equality duty (“PSED”), under s.149 of the Equality Act 2010, required in all but “rare cases” a local authority decision-maker to “spell out” his findings under that Act when upholding on review a decision that accommodation offered in discharge of the main housing duty was suitable.

The Court of Appeal so held in allowing an appeal by LB Hackney from the decision of HHJ Luba QC sitting in the County Court for Central London to quash a decision of Michael Banjo, Reviews & Appeals Manager, that an offer of one room in a hostel provided suitable accommodation for H in discharge of the authority’s duty under s.193(2) of the Housing Act 1996.

The decision provides helpful and timely guidance as to how homelessness decision-makers should approach the PSED in suitability cases following the decision of the Supreme Court in Hotak v LB Southwark & Associated Appeals [2016] AC 811.

It was common ground that H was disabled within the meaning of s.6 of the 2010 Act. He suffered from chronic neck and back pain and consequential depression for which he was found to be in priority need for accommodation. He claimed the room secured for his occupation was unsuitable because its small size and the “no visitors” condition on which it was provided exacerbated his physical and mental conditions. He requested a review of the suitability of the accommodation under s. 202(1)(f) of the 1996 Act.

Briggs LJ, with whom McCombe and Beatson LJJ agreed (McCombe LJ providing a short judgment of his own), held that in the suitability context a PSED compliant decision letter, when read as a whole, was required to evidence:

(a) A recognition that the applicant 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.

(b) A focus on the specific aspects of such impairments to the extent relevant to the suitability of the accommodation as accommodation for the applicant.

(c) A focus upon the consequences of such impairments, both in terms of the disadvantages which the applicant might suffer in using the accommodation as his accommodation by comparison with persons without those impairments.

(d) A focus on the applicant’s 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 the accommodation met those particular needs.

(e) A recognition that the 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.

Where, as here, there is substantial alignment between the subject-matter of the review and the PSED, a conscientious decision-maker carrying out a sharply focused suitability review is likely to comply with the PSED even if addressing the issues without express reference to the language of the 2010 Act, and s.149 does not of itself require reasons to be given. Mr Banjo’s decision was such a decision and should accordingly be confirmed by the Court. Significantly, Briggs LJ rejected H’s argument that the PSED required the reviewer to consider whether H needed accommodation which was more than suitable for his particular needs.

Click here to view the judgment. Kelvin Rutledge QC and Ryan Kohli represented the successful appellant, LB Hackney.