Carry on conscientiously - the Court of Appeal on the public sector equality duty and vulnerability

When training statutory homelessness teams I'm often asked to explain how the various equality duties impact on the decision-making process.

This is partly because solicitors of applicants with medical conditions make lengthy and forceful submissions. Their arguments as to why action should be taken for their client's benefit are often expressed to be based on what the public sector equality duty ("PSED") is said to require.

This means that if you're a decision-maker you need a good understanding of what the PSED actually is and what it requires.

You also need to be able to critically evaluate representations made by advocates. Assertions should be carefully analysed. This is true both when the applicant's solicitor is describing facts (eg "the depression will deteriorate and become unmanageable if my client is homeless") and assertions about how the law should be applied (eg "no reasonable council could decide he is not vulnerable in light of the PSED").

In addition you need to check whether further inquiries are required before the decision can be safely made on the issue at hand.

Last week the Court of Appeal handed down judgment in McMahon v Watford BC & Kiefer v Hertsmere BC [2020] EWCA Civ 497.

The main issue in the two joined appeals is how the PSED relates vulnerability decisions.

The judgment includes a useful review of the statutory provisions and previous case law. It's well worth reading if you make decisions on homelessness applications. Particularly, as we'll see, if you have legal representatives making technical arguments when you think the council has actually done a pretty good job of investigating medical conditions and considering what effect (if any) they will have.

Facts

The two applicants suffered from a variety of medical conditions. Mr McMahon suffered from asthma, pain affecting his upper body, and a history of alcohol and behavioural problems. By contrast Mr Kiefer suffered from depression, severe wrist pain, type 2 diabetes, and intermittent claudication (a build-up of fatty deposits in arteries that restricts blood supply to leg muscles).

Watford and Hertsmere decided that the applicants were not vulnerable. As a result, while the applicants were homeless they were not in priority need and not owed the main duty.

These decisions were upheld on internal review. However both applicants successfully appealed to the county court. Whilst finding that the vulnerability test had been correctly applied (in McMahon) and that vulnerability had been correctly assessed (in Kiefer) the circuit judges nonetheless held that the reviewing officers had not demonstrated compliance with the equality duty.

Law

Before considering the judgment further I'll attempt to summarise the statutory provisions and previous case law, not least because it informs the Court of Appeal's approach in the present case. If you're familiar with the law you might want to skip to the section below headed 'McMahon'.

Certain categories of homeless persons have a 'priority need' for accommodation and qualify for the main housing duty when the relief duty ends.

Vulnerability

Those in priority need include those who are 'vulnerable' because of certain specified characteristics, e.g. old age, mental illness or handicap, physical disability or other special reason (Housing Act 1996, s.189(1)(c)).

In relation to vulnerability the courts have established that:

• Deciding whether the applicant (or household member) is 'vulnerable' involves comparing them with an ordinary person if made homeless.
• The overall question is whether, in all the circumstances, the person is significantly more vulnerable than ordinarily vulnerable (Hotak v Southwark LBC [2015] UKSC 30).
• 'Significantly' more vulnerable means that the harm or detriment (or risk thereof) would make a noticeable difference to their ability to deal with the consequences of homelessness (Panayiotou v Waltham Forest LBC [2017] EWCA Civ 1624).
• The decision involves a practical and contextual assessment, such that the availability of sufficient support from third parties on a consistent basis may negate a potential vulnerability (Hotak).
• The relevant feature purportedly giving rise to vulnerability must have a causative link with the effect of homelessness, e.g. the inability to obtain accommodation or deal with the lack of it (Panayiotou).
• There is no additional requirement that the applicant’s functionality must necessarily be adversely affected, e.g. where a person's functionality is unaffected but they're likely to become seriously ill if homeless (Guiste v Lambeth LBC [2019] EWCA Civ 1758)

PSED

The PSED is a duty owed by public authorities, including councils when performing their homelessness functions under Part 7 of the 1996 Act (Pieretti v Enfield LBC [2010] EWCA Civ 1104).

When exercising its functions the authority must, under section 149 of the Equality Act 2010, have due regard to the need to:

• Eliminate discrimination, harassment, victimisation and any other conduct prohibited by the 2010 Act.
• Advance equality of opportunity between persons who share a relevant protected characteristic ("PI") and those who do not share it.
• Foster good relations between persons who share a relevant PI and those who do not share it.

Section 149(3) stipulates what is meant by 'having due regard to the need to advance equality of opportunity'. For example, it involves having due regard to the need to:

• Remove or minimise disadvantages, and
• Take steps to meet the needs of persons that arise because of a PI (and which are different from the needs of people who don't share the PI).

A person with a PI may need to be treated more favourably than others so as to comply with the PSED (s.149(6)).

Disability is one of the protected characteristics. A 'disability' is a physical or mental impairment which has a substantial and long-term adverse effect on someone's ability to carry out normal day-to-day activities (s.6). 'Long term' means that the adverse effect of the impairment has lasted, or is likely to last, for 12 months (Sch.1, para 2).

In Pieretti (a case decided under the Disability Discrimination Act 1995) the Court of Appeal held that Parliament had recognised the need for a culture of greater awareness of the existence and consequences of disability.

Section 49A (now s.149) may impact upon what action is required to determine whether the relevant test is satisfied (in Pieretti the issue was whether the applicant's non-payment of rent was deliberate in light of his depression, for the purposes of intentional homelessness).

Wilson LJ stated:

The greater the overlap between the particular statutory duty under consideration and the PSED, the more likely it is that in performing the statutory duty the authority will have complied with the PSED, even if the decision-maker does not expressly refer to it (R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33 (a case concerning the assessment and provision of personal care to a disabled person under legislation expressly addressing the needs of disabled persons).

Kanu v Southwark LBC (which was heard with Hotak) is the leading case on the PSED in the context of vulnerability decisions. In the Supreme Court Lord Neuberger held that:

• The PSED is 'complimentary' to the assessment of vulnerability.
• A decision on vulnerability where there is a relevant PI must be made with the equality duty in mind.
• The PSED must be exercised in substance, with rigour and with an open mind.
• It requires a very sharp focus on:
  • Whether there is a disability (or PI).
  • The extent of the disability.
  • It's likely effects on the applicant when homeless, when taken together with any other issues ,and
  • Whether the applicant is vulnerable as a result (I'll refer to these four points as the 'Hotak guidance' or 'Lord Neuberger's formula').
• In many cases a conscientious reviewing officer, who is investigating and reporting on a potentially vulnerable applicant, will comply with the PSED, despite being unaware that the PSED is engaged.

As with other legal duties decision-makers need to avoid merely giving lip service to the PSED. The leading case here is (Kannan v London Borough of Newham [2019] EWCA Civ 57.

This was a challenge to Newham's decision that a first floor flat accessible by external metal stairs was suitable notwithstanding Mr Kannan's impaired mobility. When quashing the review decision Lewison LJ pithily stated:

It's worth noting (not least because of how the same judge decides the appeals in McMahon and Kiefer) that in Kannan the reviewing officer had made significant errors when considering the applicant's disabilities. These included:

• Misunderstanding advice from the council's own medical advisor, who had confirmed that the first-floor accommodation was unsuitable.
• Downgrading the characterisation of the medical condition from 'severe pain' to something that was merely 'uncomfortable and inconvenient', without explanation.
• Failing to recognise suitability was a question of degree which can change over time (Mr Kannan has been occupying the accommodation for 14 months by the time of the review decision).
• Failing to even deal with an argument concerning the need for a shower on medical grounds, which the accommodation did not have.

Another example of an applicant successfully relying on the PSED in the Court of Appeal was Lomax v Gosport Borough Council [2018] EWCA Civ 1846. Here Gosport was required to consider whether it was reasonable for a severely disabled woman to continue occupying her adapted bungalow.

Mrs Lomax was wheelchair bound and had complex physical and health conditions. She required 24-hour care but was losing her carer. She wished to take advantage of care that was available from family members residing 70 miles away in Gosport. Letters from doctors stated that a move to Gosport was essential for Mrs Lomax's mental and physical health. None of the evidence was challenged by the council.

The reviewing officer erred when affording considerable weight to the number of people waiting in unsuitable accommodation in its district, including those without disabilities and those with less severe disabilities. The reviewing officer also did not ask himself whether Ms Lomax's situation was out of the ordinary.

The upshot of this is that he did not have the required sharp focus on the nature and effect of the applicant's disabilities. The comparative exercise was held not to comply with the PSED.

More generally, Lomax confirmed that the PSED applies at all stages of the decision-making process. In that case this included deciding whether to exercise the discretion to have regard to the general housing circumstances in the council's district when deciding whether it's reasonable to occupy accommodation (HA 1996, s.177(2)).

The 4-point Hotak guidance has been adapted by the Court of Appeal for the purpose of whether temporary accommodation is suitable for a homeless applicant (Hackney LBC v Haque [2017] EWCA Civ 4 at [43]).

Error of law

A review decision may be appealed to the county court on a 'point of law' (s.204). This means any of the grounds on which judicial review is available (Begum (Nipa) v Tower Hamlets LBC [1999] EWCA Civ 3051).

On appeal the burden is not, strictly speaking, on the council to demonstrate compliance, but on the applicant to show an error of law has been made (Freeman-Roach v Rother DC [2018] EWCA Civ 368).

When interpreting a reviewing officer's decision the court should adopt a benevolent approach. The court's assessment must be realistic and practical. It should not nit-pick or take too technical a view of the language by which the decision was expressed (Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7). However, this guidance has to be read in light in light of the PSED (Hotak).

McMahon

And so back to the present case. Both councils took umbrage with their decisions being quashed by the county court and appealed to the Court of Appeal.

Lewison LJ observed that it's apparent from the discussion in Hotak about whether vulnerability involves a one or two-stage test that it is important to:

• Avoid an arid debate.
• Not force reviewing officers into a straightjacket, and
• Recognise the practical nature of the vulnerability test.

Lewison LJ went on to state:

In Hotak Lord Wilson gave the example of someone with a physical or mental health condition who is capable of visiting their doctor and administering medication, which satisfactorily treats the condition.

Other differences between 'disability' and 'vulnerability', as Lewison LJ himself had observed in Panayiotou, are that:

• The terms are different words.
• In contrast to the duty to make reasonable adjustments (EA 2010, ss.20 and 21) where the required adjustments will differ according to the extent of the disability in the particular case, the duty owed to priority need applicants is the same in all cases, i.e. to secure suitable accommodation. The same duty is owed whether the test is satisfied by a narrow or wide margin (albeit that the duty may have to be performed differently by deciding what accommodation is suitable, according to the nature of the disability).
• The definition of disability concerns an individual's unaided capacity to carry out normal day to day activities. By contrast the homelessness legislation concerns finding accommodation. Where a housing applicant has a disability the primary focus is not the extent of their disability but rather the impact that the disability has.
• The disability definition in the Equality Act 2010 focuses on only some of the characteristics in s.189(1)(c), whereas the concept of vulnerability applies to all of them ("old age, mental illness or handicap or physical disability or other special reason").

Lewison LJ observes that in Pieretti v Enfield LBC [2010] EWCA Civ 1104, Wilson LJ had stated that the relevant part of the PSED was:

Lewison LJ states:

We know from Kanu that decision-makers must focus very sharply on the existence, nature and extent of the disability and whether it renders the applicant vulnerable.

However, Lewison LJ held that the four-point Hotak guidance is not a rigid sequential test. Decision-makers are not required to slavishly follow it when notifying negative decisions.

If this were the case the Supreme Court would not have upheld the review decision in Kanu. In that case Southwark's reviewing officer didn't express her decision in terms of the four-stage Hotak guidance.

Nonetheless, she conscientiously identified each aspect of Mr Kanu's disability and addressed with care how they'd be dealt with if he was homeless. Reasons were given as to why Mr Kanu would not be vulnerable. Indeed the reviewing officer didn't make an explicit finding as to whether Mr Kanu's conditions constituted a disability.

Furthermore, Lewison LJ notes that in Haque the court judge had been wrong to base his analysis on a supposed general principle that "in almost all circumstances" the reviewing officer must explicitly set out their reasoning on whether the applicant has a protected characteristic, whether the PSED is engaged, and if so with what effect.

Substance not form

It followed from there being no error of law in Kanu that the two circuit judges erred in the present cases when finding that similar 'failures' rendered the decisions unlawful.

Lewison LJ also rejected arguments on the applicants' behalf that the reviewing officer is required to:

• Consider the first three of the four Hotak issues while assuming that the applicant is bereft of any support or medication (i.e. whether there's a disability, its extent and the effects when homeless), before adding "back in such support and medication as was available to the applicant" when answering the fourth question (whether the applicant is vulnerable as a result) (para 55).
• Concentrate on what a person could not do, rather than on what they could do, when considering whether a person suffered from an impairment to carry out normal day to day tasks (para 56).

Lewison LJ observed that in Powell v Dacorum BC [2019] EWCA Civ 23 (a possession case) McCombe LJ had pointed out that:

The recent case of Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445 (another possession case) did not assist the applicants. That was very different. The officer who decided to pursue a possession claim knew the tenants and their daughter had disabilities, but did not consider how their disabilities might be affected by eviction.

By contrast, in the present case, the reviewing officers considered the effect of homelessness on the health problems suffered by Mr McMahon and Mr Kiefer.

In the case of vulnerability assessments not only is there overlap with the PSED, but the assessment will concentrate on the particular facts of the case.

As to compliance:

The reviewing officers had considered the applicants' health issues and other problems. Reasons were given as to why they did not render the applicant vulnerable (when considered both individually and cumulatively).

For example, although Mr McMahon suffered from back, neck, shoulder and arm pain, neither his mobility nor daily living activities were adversely affected.

The judge who allowed the initial appeal referred to the absence of an explicit conclusion as to whether Mr McMahon had a disability. This view was far too narrow. Viewing the decision as a whole it was clear that the reviewing officer decided Mr McMahon was not relevantly disabled.

Counsel for the applicants sought to rely on a previous medical retirement from work (Mr McMahon) and an inability to continue work as a carpenter (Mr Kiefer). However, Mr Kiefer's barrister was unable to link the purported disability with his ability to deal with the consequences of homelessness. The question for the reviewing officer was the effect of any disability on the applicant if homeless.

In the Hertsmere case, the circuit judge focused on the reviewing officer's statement that Mr Kiefer's depression "could be" regarded as a disability. He was also troubled that the decision letter stated that Mr Keifer's health problems could be "ameliorated by treatment." The judge considered that was irrelevant to the question of whether Mr Kiefer had a disability for the purpose of the PSED.

Lewison LJ held that the judge took too strict a view. Given the conclusion that Mr Kiefer's depression did not affect his ability to manage activities without support, it was clear that the council had concluded the applicant was not disabled. To seize on the 'could be ameliorated' statement was to apply an over-lawyerly or over-zealous linguistic analysis, of the kind disapproved in Holmes-Moorhouse.

Lewison LJ observed that a striking feature of both appeals was the lack of any evidence that any of the various medical conditions had any real effect on the applicant's ability to carry out normal activities. He went on to say:

Lessons

What's the upshot of all this? Well, there's very little in McMahon and Kiefer that experienced practitioners won't already be aware of.

Once again the courts have emphasised that compliance with the PSED is a matter of substance not form.

If nothing else the caution against technical arguments feels significant. I would be surprised if the above quote is not regularly cited by barristers when responding to s.204 appeals on PSED-related grounds.

I've even heard it said that little has really changed since the Pieretti case when it comes to the interrelationship between vulnerability and the PSED. In Pieretti Wilson LJ stated, in a passage cited by Lewison LJ in the present case, that the relevant question was:

So, if the applicant has a potential disability a negative decision will be unlawful if the council does not make inquiries that no reasonable authority would have failed to make. Decision-makers should be making sure they've established the nature and extent of any conditions or impairments.

Referring to the four-point Hotak guidance in a decision letter might help put compliance beyond doubt (or the Haque variation if it's a suitability decision). But referencing it doesn't guarantee compliance, for example if the implications of a health condition are not satisfactorily considered.

When all is said and done housing officers need to do the basics right. They should:

• Consider whether there might be a disability or condition that's relevant to the issue being decided (vulnerability, suitability etc).
• Check they have a factual basis for potential conclusions.
• Make sufficient inquiries for the purpose of answering the questions posed by the legislation.
• Actively consider the potential harms or detriments that might potentially result from conditions and impairments, and how and whether these adverse effects might be mitigated or resolved.
• Avoid affording weight to a particular factor that is irrational in the factual context, having regard to the need to advance equality and minimise disadvantages.

Adverse decision letters should then (even if only briefly):

• Make clear what findings of fact were made regarding the nature and extent of relevant conditions and disabilities.
• Give reasons in such a way that the applicant can understand why the medical conditions or other factors are not sufficient in terms of satisfying the relevant legal test.

It won't have escaped some readers' notice that housing officers who understand the basic principles of good decision-making will take the above steps as a matter of course. This is no accident. When considering how the PSED relates to homelessness decisions the courts are treading a well worn path using the established principles of administrative law.

However, if your staff don't routinely interpret casework and decision 'through the lens of' the judicial review grounds, you should consider how to facilitate this approach by decision-makers.

Conclusion

It is true there are pitfalls councils can fall into when housing applicants suffer from illness and disabilities. But the McMahon judgment should reassure homelessness teams that the PSED does not require anything exceptional, over and above good decision-making. It might even make applicant's representatives think twice before issuing s.204 appeals citing the PSED.

As to whether McMahon will prevent lengthy solicitors' letters citing technical arguments landing on homeless officers' desks, well this is entirely another question. If you're waiting for that day to arrive you probably have unrealistic expectations as to what litigation can achieve.