In this post Alice Richardson considers the decision in London Borough of Hackney v Haque  EWCA Civ 4 in which the Court of Appeal grappled with the applicability of s.149 Equality Act 2010 (“PSED”) to a “suitability” decision pursuant to ss.206 and 210 Housing Act 1996.
Mr Haque was a man in his early forties with serious neck and back pain. His disability had caused him to lose his job as a bus driver in 2011. In January 2013 his mother had asked him to leave her home. He made a homeless application to the London Borough of Hackney, in February 2013, which was refused. He sought a review and was accommodated pending the review decision. On review the original decision was upheld and he was evicted in August 2014.
Mr Haque made a second application in August 2014 and was accommodated pending a decision at Room 315 in the Metropolitan Hostel in Kingsland Road, London E8. Following a series of negative determinations and “minded to” letters, together with an unsuccessful review the Council finally concluded that Mr Haque did have a priority need, and qualified for the full housing duty, on 26 March 2015. He had been accommodated in Room 315 throughout, and the Council concluded that this accommodation was suitable for him, in discharge of its housing duty while he was placed on its waiting list for the allocation of permanent accommodation.
Mr Haque’s solicitors sought a review of the suitability of Room 315 pursuant to s.202. The accommodation was alleged to be unsuitable for Mr Haque because:
“i) Its cramped size restricted his movement and thereby exacerbated his back, shoulder, leg and neck pains;
ii) Its cramped size, coupled with a “No Visitors” policy applied in the hostel, left him isolated and prevented him from receiving visits from his children, which exacerbated his depression and anxiety;
iii) The hostel’s lack of laundry facilities meant that he was required to wear dirty clothing, since his physical disability prevented him from carrying loads of laundry to a launderette; and
iv) As a result of all the above, he had been required to increase his dosage of anti-depressant medication.”
In a decision dated 29 September 2015 the Council concluded that:
“i) Room 315 was of ample size, were it not excessively cluttered by Mr Haque’s possessions, some of which he could put into storage offered by the Council at reasonable cost.
ii) Mr Haque could use local parks, local restaurants and eateries to meet his family and friends, or see them in their own homes, and did not therefore need an exception from the No Visitors policy in order to avoid having his depression exacerbated by loneliness.
iii) The nearest launderette was sufficiently proximate for him to be able to reach it with moderate loads of laundry, and the No Visitors policy was to be mitigated in his case by permitting his family to visit him to collect and return laundry.
iv) The council’s independent medical advisor had concluded that his condition was such that a flat served by one flight of stairs and a lift was suitable for him, and that the evidence did not sufficiently demonstrate that his current accommodation was exacerbating his condition, which had been long-standing.”
The letter also stated that “In reaching this decision I have had regard to the Equalities Act 2010…”.
Mr Haque appealed to the County Court under s.204 Housing Act 1996. He pursued various grounds of appeal and was successful on his first ground that the review officer “failed to apply the PSED in considering whether Room 315 was suitable having regard to his medical condition”. The decision was quashed.
The Council appealed to the Court of Appeal.
s.149(1) Equality Act 2010 provides:
“A public authority must, in the exercise of its functions, have due regard to the need to:
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
In Hotak v Southwark London Borough Council; Kanu v Southwark London Borough Council  AC 811 the Supreme Court considered, inter alia, the relationship between the PSED and the assessment of priority need under s.189(1)(c) Housing Act 1996. Delivering the leading judgment Lord Neuberger, at , held that “each stage of the decision-making exercise … must be made with the equality duty well in mind” and 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””
However, at , Lord Neuburger went on to say that “… a conscientious reviewing officer who was investigating and reporting on a potentially vulnerable applicant, and who was unaware of the fact that the equality duty was engaged, could, despite his ignorance, very often comply with that duty”.
The Court of Appeal decision
The Court of Appeal allowed the Council’s appeal. Delivering the lead judgment Briggs LJ held, at , that Lord Neuberger’s four-stage approach in Hotak was only concerned with vulnerability under s.189(1)(c) Housing Act 1996. Equally, Lord Neuberger’s acceptance that “in many cases” a reviewing officer might discharge a PSED even if ignorant of it was expressly directed to the conduct of a vulnerability assessment.
The general principle to be derived from Hotak was the “…sharp focus required of the decision maker upon the relevant aspects of the PSED where it is engaged by the contextual facts about each particular case”.
Briggs LJ set out the relevant context in Mr Haque’s case, at , and went on to consider what the PSED required of the reviewing officer on those facts. At  he held:
“In my judgment, it required the following:
i) A recognition that Mr Haque 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; i.e. that he was disabled within the meaning of EA s. 6, and therefore had a protected characteristic.
ii) A focus upon the specific aspects of his impairments, to the extent relevant to the suitability of Room 315 as accommodation for him.
iii) A focus upon the consequences of his impairments, both in terms of the disadvantages which he might suffer in using Room 315 as his accommodation, by comparison with persons without those impairments (see s. 149(3)(a)).
iv) A focus upon his 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 Room 315 met those particular needs: see s. 149(3)(b) and (4).
v) A recognition that Mr Haque’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: see s. 149(6).
vi) A review of the suitability of Room 315 as accommodation for Mr Haque which paid due regard to those matters.”
The Judge below, HHJ Luba QC, had concluded that Hotak, read together with the duty to give reasons for a reviewing officer’s decision:
“… oblige a reviewing officer to be transparent in his treatment of the issues of whether an applicant does or does not have a protected characteristic and as to whether the public sector equality duty is in play and with what effect. In my judgment, that will in almost all circumstances, require a reviewing officer to spell out, at least in summary form, his decisions on those matters. Indeed, he should go further and spell out what follows from an affirmative finding that a protected characteristic is established and that the public sector equality duty is in play”.
The Court of Appeal considered that approach to be wrong and adapted para 79 in Hotak to conclude that a conscientious reviewing officer considering the objections in good faith and in a focussed manner would be likely to comply with the PSED even if unaware of its existence (at ). Further s.149 did not require the decision maker to give any reasons for a decision to which the PSED applies (at ).
In Mr Haque’s case, taking a “stand-back” approach to the decision, the review officer had complied with the six stage approach set out above.
The decision that the four-stage approach in Hotak applies only to vulnerability decisions may not be surprising to some. Instead the six stage test should be looked at closely by those representing homeless applicants challenging suitability for reasons related to disability in future.
The decision on the duty to give reasons may cause some consternation. How is a homeless person, or indeed his advisor, to know whether the PSED has been properly considered if the review decision does not contain the type of reasoning that HHJ Luba QC referred to?
In this case McCombe LJ, at , expressed some reservations in relation to that point stating:
“I confess to having had hesitation as to whether Mr. Banjo’s decision sufficiently demonstrated adequate regard for the requirements of the PSED…. I considered Mr Arden’s submissions on this point to be particularly persuasive”.
Faced with what seems a somewhat harsh review decision Briggs LJ had said, at :
“Judicial notice can be taken of the fact that housing authorities experience grave constraints in finding appropriately located suitable accommodation for those applicants demonstrating priority need, and that many of them deserve more favourable than purely average treatment by reason of vulnerabilities, including protected characteristics of a type which engage the PSED. The allocation of scarce resources among those in need of it calls for tough and, on occasion, heartbreaking decision-making, but having to say no to those deserving of sympathy by no means betokens a failure to comply with the PSED.”