Stephen McMahon v Watford Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Floyd,Lord Justice Coulson |
| Judgment Date | 08 April 2020 |
| Neutral Citation | [2020] EWCA Civ 497 |
| Docket Number | Case No: B5/2019/2078 |
| Date | 08 April 2020 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 497
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT WATFORD
Her Honour Judge Bloom
B02WD117
Royal Courts of Justice
Strand, London, WC2A 2LL
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT WATFORD
His Honour Judge Rochford
F00WD831
Lord Justice Lewison
Lord Justice Floyd
and
Lord Justice Coulson
Case No: B5/2019/2078
Case No: B5/2020/0128
Mr Toby Vanhegan & Mr Matthew Lee (instructed by Arkrights Solicitors) for the Respondent
Mr Michael Paget & Ms Zoe Whittington & (instructed by Watford Borough Council) for the Appellant
Mr Toby Vanhegan & Mr Matthew Lee (instructed by Arkrights Solicitors) for the Respondent
Ms Catherine Rowlands & Mr Rowan Clapp (instructed by Hertsmere Borough Council) for the Appellant
Hearing date: 18 th March 2020
Approved Judgment
Introduction
These two appeals raise the question of the interaction between a determination whether an applicant for assistance under the homelessness legislation is “vulnerable” and compliance with the public sector equality duty (“the PSED”).
There is a further potential issue about the appropriate remedy in the event that a court decides that the reviewing officer has made an error of law.
We were informed at the hearing that a different constitution of this court had heard an appeal in Luton Community Housing Ltd v Durdana which might have an impact on the issues in this appeal. We therefore said that we would wait until judgment in that appeal has been given, and also allow the parties an opportunity to make written submissions about it. Judgment in Luton Community Housing Ltd v Durdana was handed down on 26 March 2020: [2020] EWCA Civ 445. We received written submissions from the parties, the last of which was sent on 2 April 2020.
The basic statutory framework
A local housing authority has statutory duties to the homeless. The extent of those duties varies. Where a person is homeless, has not become homeless intentionally and is in priority need, that duty is a duty to ensure that suitable accommodation is available for their occupation (section 193(2). There are some categories of person who automatically qualify as having a priority need: pregnant women, or people made homeless by flood, fire or other disaster, for example. But in other cases a comparative test needs to be applied. The particular category of person with whom we are concerned is described in section 189 (1) (c) of the Housing Act 1996:
“a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside.”
In performing its functions under the homelessness legislation a local authority must also comply with the PSED. The PSED is laid down by section 149 of the Equality Act 2010 and provides, so far as relevant:
“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.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities … .”
Relevant protected characteristics include disability. Section 6 of the 2010 Act provides that a person has a disability if he has a physical or mental impairment which has “a substantial and long-term effect” on his ability to carry out normal day-to-day activities. Section 212 of that Act defines “substantial” as “more than minor or trivial”. Schedule 1 paragraph 5 of the 2010 Act provides:
“(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—
(a) measures are being taken to treat or correct it, and
(b) but for that, it would be likely to have that effect.
(2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.
(3) Sub-paragraph (1) does not apply—
(a) in relation to the impairment of a person's sight, to the extent that the impairment is, in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed;
(b) in relation to such other impairments as may be prescribed, in such circumstances as are prescribed.”
Schedule 1 paragraph 1 enables regulations to be made providing for particular conditions to be, or not to be, an impairment.
McMahon v Watford BC
Mr McMahon applied to Watford for assistance on 10 October 2014. On 1 May 2015 Watford decided that he was not in priority need. Mr McMahon asked for a review of that decision. The review was carried out by Mr Minos Perdios who upheld the decision in his letter of 18 November 2015. Mr McMahon appealed against that decision.
The extraordinary length of time that this appeal has been outstanding is in part attributable to an agreement to stay the appeal pending the decision of this court in Haque v Hackney LBC and Panayiotou v Waltham Forest LBC, both of which I will consider in due course. HHJ Bloom allowed Mr McMahon's appeal. She held that although Mr Perdios had not applied the wrong test in his approach to the question whether Mr McMahon was vulnerable, he had not demonstrated that he had properly complied with the PSED.
Although this is, in form, an appeal against her decision, it is in substance an appeal against Mr Perdios' decision. We must concentrate on the latter.
Kiefer v Hertsmere BC
Mr Kiefer first applied to Hertsmere on 19 th December 2016. Hertsmere determined that he was homeless and eligible for assistance but not in priority need. That decision was quashed on 13 September 2018. So Hertsmere undertook another review. The review was carried out by Ms Sally Kaissi, a housing review officer. She decided that Mr Kiefer was homeless and eligible for assistance but not in priority need. The reason for her conclusion was that despite his medical condition, Mr Kiefer was not vulnerable. Mr Kiefer appealed against that decision.
HHJ Rochford held that Mr Kaissi had correctly assessed Mr Kiefer's vulnerability. There was no flaw in the decision on that account. There is no cross-appeal against that conclusion. But the judge nevertheless quashed the decision, on the ground that Ms Kaissi had not demonstrated that she had complied with the PSED.
Once again this is, in form, an appeal against Judge Rochford's decision, it is, in substance, an appeal against Ms Kaissi's decision. We must concentrate on the latter.
The approach to decisions of a reviewer
Section 203 (4) of the Housing Act requires reviewing officers to give reasons for their decisions. Section 149 of the Equality Act imposes no separate duty to give reasons: Haque v Hackney London Borough Council [2017] EWCA Civ 4, [2017] PTSR 769.
Where it is alleged that a review decision should be quashed, it is for the applicant to show that the reviewer has made an error that undermines the decision; it is not for the reviewer to demonstrate that he has not: Freeman-Roach v Rother District Council [2018] EWCA Civ 368, [2019] PTSR 61.
In examining the reasons for a decision, the court should adopt a benevolent approach. It should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach. Its assessment must be realistic and practical: Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR 413. The reviewing officer is not writing an examination paper in housing law. Nor are they required to expound on the finer points of a decision of the Supreme Court: Freeman-RoUKSC ach.
This approach applies both to the question of vulnerability and also to the question whether the PSED has been fulfilled. In Poshteh v Kensington and Chelsea Royal London Borough Council [2017] UKSC 36 the question was whether the reviewer had lawfully determined that accommodation was suitable for Mrs Poshteh, having regard to her mental condition. The PSED was relied on. Lord Carnwath said at [39]:
“In my view, the appeal on this issue well illustrates the...
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