Mr Sivapragasam Kannan v London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Moylan |
| Judgment Date | 04 February 2019 |
| Neutral Citation | [2019] EWCA Civ 57 |
| Docket Number | Case No: B5/2018/1171 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 February 2019 |
[2019] EWCA Civ 57
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
Mr Recorder Howlett
D40CL427
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
and
Lord Justice Moylan
Case No: B5/2018/1171
Mr Edward J Fitzpatrick (instructed by Hodge Jones & Allen LLP) for the Appellant
Ms Tina Conlan (instructed by Newham Legal Services) for the Respondent
Hearing date: 29 January 2019
Approved Judgment
On 3 August 2016, in response to Mr Kannan's application for assistance with homelessness, Newham LBC accepted that he was unintentionally homeless and in priority need. That acceptance triggered what is called the “full housing duty” under section 193 of the Housing Act 1996. Section 193 (2) describes that duty as a duty to “secure that accommodation is available for occupation by the applicant”. Section 206 provides that a housing authority may only discharge that duty by securing that “suitable accommodation” is available; provided either by the authority or by a third party. The issue raised on this appeal is whether the accommodation provided for Mr Kannan is “suitable”. By a decision made on 31 October 2017 Newham decided that it was. Mr Kannan appealed to the county court against that decision. But on 26 April 2018 Recorder Howlett dismissed his appeal. Following the hearing of the appeal in this court we announced that we would allow the appeal and put our reasons in writing. These are my reasons for joining in that decision.
Since 5 August 2016 Mr Kannan and his family have been housed at 157a High Street North in East Ham; so they have now been there for some 2 1/2 years. The property is owned by a private landlord. The accommodation consists of a flat on the first floor above a casino. Access is via an external metal staircase of 14 steps. The flat is equipped with a bathroom; but the bathroom has no shower. Mr Kannan suffers from a number of medical conditions which have required extensive reconstructive surgery; and which seriously affect his mobility. Newham accepts that the effect of these conditions amounts to a disability for the purposes of the Equality Act 2010. Mr Kannan has complained about the suitability of the accommodation from the time he moved in. His main complaints have been about the stairs, and the lack of a shower. He has also complained about noise from the casino, but that complaint is not relevant for the purposes of this appeal.
Section 210 of the 1996 Act enables the Secretary of State to prescribe what is or is not to be regarded as suitable accommodation; and to prescribe matters to be taken into account in determining that question. He exercised that power in the Homelessness (Suitability of Accommodation) (England) Order 2012; but none of the specific criteria in that order bear on this case. Section 182 also requires housing authorities to take into account guidance given by the Secretary of State. At the relevant time the guidance included the following:
“Housing authorities will need to consider carefully the suitability of accommodation for applicants whose household has particular medical and/or physical needs. The Secretary of State recommends that physical access to and around the home, space and bathroom and kitchen facilities, access to a garden and modifications to assist sensory loss as well as mobility needs are all taken into account. These factors will be especially relevant where a member of the household is disabled.”
Lady Hale and Lord Neuberger considered the question of suitability in Birmingham CC v Ali [2009] UKHL 36, [2009] 1 WLR 1506. At [18] they noted the different duties that a housing authority may have: on the one hand to provide interim accommodation pending a decision and on the other to provide accommodation in fulfilment of the “full housing duty” under section 193. They said:
“Clearly, however, what is regarded as suitable for discharging the interim duty may be rather different from what is regarded as suitable for discharging the more open-ended duty in section 193(2); but what is suitable for discharging the “full” duty in section 193(2) does not have to be long-life accommodation with security of tenure such as would arise if the family were allocated the tenancy of a council house under the council's allocation policy determined in accordance with Part VI of the 1996 Act.”
They went on to say at [47]:
“There are degrees of suitability. What is suitable for occupation in the short term may not be suitable for occupation in the medium term, and what is suitable for occupation in the medium term may not be suitable for occupation in the longer term. …the suitability of a place can be linked to the time that a person is expected to live there. Suitability for the purpose of section 193(2) does not imply permanence or security of tenure.”
What is clear from that case is that the mere passage of time may turn accommodation that was suitable for the short term into accommodation that is no longer suitable. Lady Hale said so in terms at [48]. In considering whether accommodation is or remains suitable, a housing authority must consider not only the length of time for which the applicant has been there, but also the time for which he is expected to stay: Lord Hope at [3]; Lord Scott at [5]; Lady Hale at [41] and [47]. Clearly this requires some degree of looking to the future.
In considering whether accommodation is suitable the reviewing officer is entitled to have regard to “the realities given the practical constraints imposed, both by the numbers of competing applicants for a housing stock limited in quantity and quality by financial constraints”: R (Omar) v Brent LBC (1991) 23 HLR 446 at 459. He is equally entitled to take into account “the background of serious shortage of housing and overwhelming demand from other applicants, many no doubt equally deserving”: Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36, [2017] AC 624 at [39].
Because Mr Kannan has a disability, the public sector equality duty imposed by section 149 of the Equality Act 2010 also comes into play. The impact of this duty on decisions in the field of homelessness has been considered both by the Supreme Court ( Hotak v Southwark LBC [2015] UKSC 30, [2016] AC 811) and also by this court ( Haque v Hackney LBC [2017] EWCA Civ 4, [2017] PTSR 769; Lomax v Gosport BC [2018] EWCA Civ 1846, [2018] HLR 40). This duty applies at all stages in the decision-making process. In Hotak Lord Neuberger said at [78]:
“It is therefore appropriate to emphasise that the equality duty, in the context of an exercise such as a s 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”.”
Although the question in Hotak was vulnerability, the same approach applies to the question whether offered accommodation is suitable, which was the question in Haque; as well as to the question whether it is reasonable for someone to continue to occupy accommodation, which was the issue in Lomax. It must be emphasised that Lord Neuberger was instructing the reviewing officer how to go about his task. He was not providing a reviewing officer with a defensive ritual incantation.
The public sector equality duty also has a significant impact on the way in which a reviewing officer is entitled to have regard to general housing conditions. In Lomax I said, in a judgment with which David Richards and Coulson LJJ agreed:
“50. I agree with Mr Hodgson that a generalised reference to the situation of people on the council's housing list, who may or may not have disabilities, let alone disabilities as severe as Ms Lomax', does not have the required sharp focus on Ms Lomax' particular disabilities and the consequences for her of remaining in her current accommodation; and the particular reasons why continuing to occupy her current accommodation would continue to damage her mental health (and in due course her physical health). The reviewing officer says no more than that the accommodation occupied by those households “is having a medical or social impact on them”. A social impact is not itself a disability. Nor did the reviewing officer comment on the severity of that medical or social impact.
51. As Mr Drabble submitted, ss.149(3)(b) and (4) require a local authority to have regard to the duty to take steps to meet the different needs of a disabled person as compared to those who are not disabled. Moreover, those steps may involve treating a disabled person more favourably than a person who is not disabled. The comparative exercise that the reviewing officer carried out did not, in my judgment, comply with these duties. Nor did the reviewing officer ever ask himself the question whether Ms Lomax's situation was one which was out of the ordinary or out of the norm. These were significant errors which led the reviewing officer to conclude that he should give “considerable weight” to the general circumstances in relation to housing in the Gosport area. Had he properly applied the PSED in his comparative exercise he would probably have reached a very different conclusion.”
As I have said, Mr Kannan has repeatedly complained about the suitability of the accommodation at 157 a High Street North. In his letter of 20 August 2016 he said:
“To reach my present accommodation I have to climb nearly 14 steps. After climbing steps I feel tired and experience severe pain in my abdominal and thigh areas. Doctors have...
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...to no more than a “tick-box” exercise”. The need for rigour in the exercise of the PSED is further brought out in Kannan v Newham LBC [2019] EWCA Civ 57 [2019] HLR 22. The appellant in Kannan suffered from a number of medical conditions which restricted his mobility. The appellant requeste......
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