London Borough of Hackney v Haque
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs,Lord Justice Beatson,Lord Justice McCombe |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] EWCA Civ 4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2016/1028 |
[2017] EWCA Civ 4
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
His Honour Judge Luba QC
BO2EC899
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Beatson
and
Lord Justice Briggs
Case No: B5/2016/1028
Mr Kelvin Rutledge QC and Mr Ryan Kohli (instructed by London Borough of Hackney) for the Appellant
Mr Andrew Arden QC and Ms Stephanie Smith (instructed by Morgan Hall Solicitors Limited) for the Respondent
Hearing dates: 15 December 2016
Approved Judgment
Introduction
This appeal from the Order made by HH Judge Luba QC in the County Court at Central London on 18 February 2016 raises further issues about the impact of the Public Sector Equality Duty ("PSED") upon the discharge by a local housing authority of its duties under Part VII of the Housing Act 1996 ("HA"), beyond those already addressed by the Supreme Court in Hotak v Southwark London Borough Council; Kanu v Southwark London Borough Council [2016] AC 81 Both the Hotak case and this case concern the relationship between the PSED and what is sometimes called the authority's "full" housing duty, that is the duty under HA s. 193 to "secure that accommodation is available for occupation by the applicant" where the authority are satisfied that an applicant is "homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally".
In the Hotak case, the PSED impacted upon the housing authority's determination of the question whether the applicant had a priority need i.e. whether the authority owed him the full housing duty at all. In the present case the PSED impacts upon the question, raised by an applicant to whom the full duty was owed, whether the accommodation already provided was "suitable" within the meaning of HA ss. 206 and 210.
It is common ground, and plainly correct, that the PSED is engaged in the course of any decision-making about the suitability of accommodation made available for occupation under HA s. 193(2), when the applicant is in priority need for accommodation because (as in the present case) he is "vulnerable as a result of… mental illness or handicap or physical disability…" (see HA s. 189(1)(c)). This is because that person has a disability within the meaning of section 6 of the Equality Act 2010 (" EA"), and because disability is a relevant protected characteristic which attracts the PSED, under EA s. 149.
In the present case the authority, the London Borough of Hackney ("the Council"), made available for the occupation of the applicant Mr Mohammed Haque a single room on the third floor of a hostel ("Room 315") because it accepted that he was vulnerable by reason of physical disability and mental ill health, and therefore in priority need. Mr Haque complained that Room 315 was unsuitable by reason of particular aspects of his physical and mental condition, and sought a review under HA s.202(1)(f). The Council's reviewing officer, Mr Michael Banjo, decided, for reasons given in his written decision on 29 September 2015 ("the Decision"), that the accommodation was suitable for Mr Haque.
The judge quashed that decision because, in his view, Mr Banjo had not demonstrated that he had complied with the PSED when conducting his review. Specifically, the judge held that the Decision showed that Mr Banjo had either:
"failed to address what is required by the section 149 duty, as explained in Hotak, or that if he did so, he has expressed himself in such a way as to be insufficient to discharge his obligation imposed by section 203 ( of the Housing Act) to give reasons for his decision". (My italics).
Both in the County Court, and in this Court, it was common ground that the judge began from the correct starting point. He said, (at paragraph 44):
"In my judgment, the correct approach is to stand back from the reviewing officer's decision, read as a whole, and to ask whether it is possible to discern from it that the reviewing officer has adopted the approach to section 149 required by the judgment of Lord Neuberger in Hotak."
For the Council, Mr Kelvin Rutledge QC and Mr Ryan Kohli submitted that the judge had misinterpreted the Hotak decision by assuming that in almost all cases it will be necessary for the reviewing officer expressly to spell out his decision-making by reference to each of the requirements imported into his task by the PSED, which Mr Banjo did not do. Mr Andrew Arden QC and Ms Stephanie Smith for Mr Haque submitted by contrast that the judge had done no more nor less than specify what the underlying principle laid down in Hotak required in the different context of a suitability review and that, in any event, Mr Banjo's review was PSED deficient on any sensible analysis.
The Facts
Mr Haque is a man in his early forties with serious neck and back pain. In a letter to the Council in January 2015, his GP described him as follows:
"This 39 year old patient of ours is known to suffer severe chronic cervical and lumbar spine problems affecting his physical as well as his mental health profoundly. He has been receiving ongoing orthopaedic physio, pain management and spinal surgical, for which we are awaiting opinion.
His chronic severe musculoskeletal problems resulted in significant psychological problems, together with his housing situation, making his life unbearable. He is, at the moment, awaiting psychological therapies. However, he is on strong antidepressant medication as well as strong analgesics to control his symptoms."
It appears that Mr Haque's disability had caused him to lose his job as a bus driver in 2011. In January 2013 his mother asked him to leave the house in which he had until then been residing with her.
Mr Haque's homelessness application to the Council in February 2013 was refused on the basis that his then disability was insufficient to make him vulnerable within the meaning of HA s. 189(1)(c). Following a successful judicial review challenge, the council provided Mr Haque with temporary accommodation pending a review of its decision that he was not in priority need. He was evicted from that accommodation in August 2014.
On 15 August 2014 Mr Haque made a second homelessness application, pending the determination of which he was offered temporary accommodation, this time in Room 315 in the Metropolitan Hostel in Kingsland Road, London E8. There followed a series of negative determinations and "minded to" letters, together with an unsuccessful review, between August 2014 and February 2015, before the Council finally concluded that he did have a priority need, qualifying for the full housing duty in his favour, 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 as a priority applicant on its waiting list for the allocation of permanent accommodation.
By letter dated 21 April 2015 Mr Haque's solicitors sought a review of the suitability of Room 315 pursuant to HA s. 202. Room 315 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.
Medical evidence supportive of that case was submitted on Mr Haque's behalf.
On 29 July Mr Banjo commissioned an enquiry into Mr Haque's situation, summarising the essence of his complaint and asking that an urgent visit to Room 315 be carried out, to view its size and status, to ascertain why its size made it cramped for Mr Haque's use and how that affected his health symptoms, to observe his mobility, to describe the extent to which his room was served by stairs or a lift, and to investigate available laundry facilities.
On 4 August Mr Banjo received emailed reports from the hostel's manager, a Mr Asania, and from the Council's temporary accommodation manager Ms Johnson, following Mr Asania's visit to Room 315. In summary, they reported as follows:
i) That his room was cluttered by a lot of personal belongings, including a big TV.
ii) Otherwise the room was of a suitable size (rooms in the Metropolitan Hostel being on the generous side of average).
iii) His third floor room was served by a lift, but he needed to manage fourteen steps on the way.
iv) The nearest laundry was also in the Kingsland Road, and Mr Haque regularly ate out nearby in Brick Lane.
v) The hostel's No Visitors policy could be relaxed so as to permit a friend or relative to visit him to collect and return his laundry to and from the launderette.
vi) His current medication of 30mg Mirtazapine for depression, and Tramadol for pain, was noted.
Mr Banjo was later informed, upon his further enquiry, that Room 315 measured 16msq (which he converted to 172 sq ft).
On 19 September Mr Banjo received a desk-top medical assessment from the Council's medical advisor Dr Keen, based upon information and medical evidence supplied by Mr Haque, which concluded that his current accommodation was suitable for him on medical grounds, since he could navigate some stairs, and it was partially lifted, and that he appeared to be receiving appropriate treatment for his physical and mental conditions.
Mr Banjo reviewed all...
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