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New Court of Appeal case on PSED and 'general housing circumstances'

The Court of Appeal has set out a six-stage test for comparing the position of a disabled person with the "general circumstances prevailing in relation to housing" under section 177(2) of the Housing Act 1996.

In the case of Lomax v Gosport Borough Council [2018] EWCA Civ 1846, the Appellant had extensive disabilities and was living in an isolated location, a long way from family and friends in Gosport who were willing to provide her with essential care. She applied to Gosport Borough Council as homeless on the basis that it was unreasonable for her to continue to occupy her accommodation which, as a result of her disabilities, was harming her mental and physical health.

The Council's reviewing officer concluded that, notwithstanding its impact on her health, the property was reasonable for the Appellant to continue to occupy. He applied section 177(2), which allows local housing authorities to consider the "general circumstances prevailing in relation to housing" in their areas when deciding whether it would be, or would have been, reasonable for an applicant to continue to occupy their accommodation. He justified his conclusion by attaching significant weight to the general lack of supply of housing in Gosport and the large number of people on the Council's housing register.

The Court of Appeal heard the Appellant's challenge to that decision last week. It was the first time the Court had been asked to consider the relationship between section 177(2) and the Public Sector Equality Duty. The Equalities and Human Rights Commission were given permission to intervene in the appeal.

The case centred on whether the reviewing officer had carried out an appropriate comparison between the Appellant's particular circumstances as a disabled person and the general circumstances in Gosport's area.

Just as it did in Haque v Hackney LBC [2017] EWCA Civ 4, the Court held that the PSED requires a "sharp focus" to be applied to certain matters.

For the purposes of a comparison made under section 177(2), those matters were set out in a "helpful structure" described in paragraph 43 of Lewison LJ's judgment:

(1) A sharp focus on whether the applicant is disabled

(2) A sharp focus on the extent of her disabilities

(3) A sharp focus on the likely effect of her disabilities, when taken together with any other features, on the applicant for as long as she continues to occupy her accommodation

(4) A sharp focus on the applicant's particular needs in relation to accommodation which arises from her disabilities and the extent to which her current accommodation meets those needs

(5) A comparison between the applicant's accommodation needs and the accommodation needs of people without her particular disabilities

(6) A recognition that, when considering whether it is reasonable for her to continue to occupy her accommodation, the applicant might need to be treated more favourably than others without her disabilities.

In this particular case, the appeal was allowed and the reviewing officer's decision was quashed.

His comparison had not properly taken into account the difference between the Appellant's accommodation needs as a disabled person and the accommodation needs of people without her disabilities. Nor had the reviewing officer asked himself the question underlying the comparison in section 177(2): was the Appellant's case out of the ordinary?

Matt Lewin acted for the Respondent, Gosport Borough Council.