PSED: four things every decision-maker needs to know

27 Sep 2018

Housing, Public Law and Judicial Review

By Matt Lewin

The latest homelessness case in the Court of Appeal – Lomax v Gosport BC [2018] EWCA Civ 1846 (incidentally, my first case in that court) – is a helpful reminder that the Public Sector Equality Duty is complex and can be difficult to get right in a decision letter. In all cases, it will require a “sharp focus” to be applied to the applicant’s disability and the consequences of that disability.

In this article, I set out four tips for housing officers on how to correctly apply the PSED.

1. Describe the applicant’s disability in some detail

In Lomax, the Court of Appeal re-stated the importance of applying a “sharp focus” on the applicant’s disability and the needs of the applicant arising from her disability. Therefore, regardless of the issue to be decided (e.g. intentionality, vulnerability, suitability) your decision letter needs to set out in some detail:

  • Whether the applicant and is disabled
  • The nature of that disability

Remember that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities (s.6 Equality Act 2010). The threshold for when a person is disabled is set fairly low: “substantial” means more than “more than minor or trivial” (s.212 Equality Act 2010).

This is only a starting point, but if done correctly, you are well on the way to applying the PSED correctly.

2. Think carefully about how the applicant’s disability impacts on them

The precise nature of this step will vary depending on the issue to be decided. However, a common theme from the principal cases to have considered the PSED is that you need to identify the relevant aspects of the applicant’s disability and describe the consequent impact on the applicant (e.g. depression and anxiety exacerbated by a “no visitors” policy at current accommodation).

3. Draw an express comparison of applicant’s situation with that of a non-disabled person in the same position – and ask whether the applicant deserves a more favourable treatment

This is a crucially important aspect of the PSED: you must have due regard to the need to take steps to meet the needs of a disabled applicant which are different from the needs of a non-disabled applicant (s.149(3)(b) Equality Act 2010). Therefore you need to make a comparison between the applicant’s situation as a disabled person and a person in the same situation who is not disabled (e.g. applicant with claustrophobia living in cramped accommodation compared to someone without claustrophobia in similarly cramped accommodation). You should expressly describe that comparative exercise in your decision letter.

Remember that this may require giving the applicant more favourable treatment (s.149(4) Equality Act 2010). Again you should expressly state that you have given consideration to whether the applicant’s needs call for more favourable treatment (e.g. more spacious accommodation than standard accommodation offered to homeless applicants).

4. It’s not enough to simply say that you have applied the PSED – or that the PSED would not change your decision

By all means, state expressly in your decision letter that you have considered the PSED and applied a sharp focus to the relevant aspects of the applicant’s disability. However, that of itself will never be enough to actually comply with the PSED. You need to set out an analysis as outlined above.

Some assistance can be found in the case law, in which the courts have set out a structured, step-by-step approach for applying the PSED in the following circumstances:

  • Hotak – vulnerability (para 78)
  • Haque – suitability (para 43)
  • Lomax – whether accommodation reasonable to continue to occupy accommodation by standards generally prevailing in your area (para 43)

Although not necessary in every case, adopting this kind of analysis will make it easier to demonstrate that you have correctly and lawfully applied the PSED.