Wendy Lomax v Gosport Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Lord Justice Coulson,Lord Justice Lewison |
| Judgment Date | 01 August 2018 |
| Neutral Citation | [2018] EWCA Civ 1846 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2017/3067 |
| Date | 01 August 2018 |
[2018] EWCA Civ 1846
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Portsmouth Combined Court Centre
Her Honour Judge Sullivan QC
D01WT243
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice David Richards
and
Lord Justice Coulson
Case No: B5/2017/3067
and
Mr Martin Hodgson (instructed by South West London Law Centre) for the Appellant
Mr Matthew Lewin (instructed by Gosport Borough Council Legal Services Dept) for the Respondent
Mr Richard Drabble QC for the Intervener
Hearing date: 25 July 2018
Approved Judgment
Introduction
The issue on this appeal is whether Gosport BC correctly applied sections 175 and 177 of the Housing Act 1996 in concluding that it was reasonable for a severely disabled applicant for housing to continue to occupy her accommodation.
Ms Lomax is a former member of the RAF. She suffers from a number of both physical and mental problems. She is wheelchair bound and is confined to bed for large portions of the day. She requires 24-hour care, including intimate care which for the time being is provided by her former partner. But her former partner has decided to move on. Ms Lomax holds the current accommodation that she occupies under a tenancy from a housing association. It consists of a two bedroomed bungalow in sheltered accommodation which has been physically adapted to meet her needs.
However, the bungalow is in an isolated rural area in Dorset. In consequence she is extremely isolated, has no visitors and is medically unable to engage with her local community. There is no public transport and no voluntary transport with wheelchair access. So Ms Lomax cannot get out of the house. Ms Lomax' family lives in Gosport, some 70 miles away, and they would be able and willing to provide the support that she needs. Not unnaturally she wishes to move in order to be near them. With that in mind she applied to Gosport BC for assistance as a homeless person. The basis of the application was that although she was physically housed, it was not reasonable for her to continue to occupy her accommodation.
Gosport BC considered her application but refused it. She required a review of the decision, which was carried out by Mr Shane Galvin, a Senior Housing Options Officer. He decided that it was reasonable for Ms Lomax to continue to occupy her current accommodation; with the consequence that she was not homeless. HHJ Sullivan QC, sitting in the county court at Portsmouth, dismissed her appeal.
The basic legal framework
The key statutory provisions are these. Section 175 (1) of the Housing Act 1996 provides:
“(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he—
(a) is entitled to occupy by virtue of an interest in it…”
Section 175 (3) qualifies this by saying:
“A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.”
Section 177 (2) provides:
“In determining whether it would be, or would have been, reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation.”
If Ms Lomax is homeless it is highly likely that because of her disability she would have a priority need for accommodation as defined by section 189 (1) (c). In that event the council would be obliged to secure that “suitable accommodation” is available for her.
In other parts of the homelessness legislation councils are required to determine whether an applicant has been reasonable. One such judgment arises where an applicant has refused an offer of suitable accommodation. In Slater v Lewisham LBC [2006] EWCA Civ 394, [2006] H.L.R. 37 Ward LJ said of the approach to reasonableness in that situation at [34]:
“In judging whether it was unreasonable to refuse such an offer, the decision-maker must have regard to all the personal characteristics of the applicant, her needs, her hopes and her fears and then taking account of those individual aspects, the subjective factors, ask whether it is reasonable, an objective test, for the applicant to accept. The test is whether a right-thinking local housing authority would conclude that it was reasonable that this applicant should have accepted the offer of this accommodation.” (Emphasis in original)
This test appears to me to have been approved by the Supreme Court in Poshteh v Kensington and Chelsea RLBC [2017] UKSC 36, [2017] AC 624 at [5]. In my judgment the same approach should be applied in determining whether it is reasonable for a particular applicant to continue to occupy her current accommodation.
It is also pertinent to recall that in deciding whether accommodation is suitable, evaluating the accommodation is not merely a question of size and physical arrangement. The location of the accommodation is also a key factor. In R (Sacupima) v Newham LBC [2001] 1 WLR 563, 575 (approved by the Supreme Court in Nzolameso v Westminster CC [2015] UKSC 22, [2015] PTSR 549) Latham LJ put it this way:
“It seems to me that, if it be right that the relevant question is whether the relevant accommodation is suitable for the particular homeless person and his or her family, it is inevitable that the location of that accommodation may be relevant to an assessment of its suitability.”
In relation to suitability of offered accommodation the position is confirmed by legislation, in that article 2 of the Homelessness (Suitability of Accommodation) (England) Order 2012 states that in assessing suitability “the local housing authority must take into account the location of the accommodation”. If this is a relevant consideration for assessing the suitability of offered accommodation, it seems to me that it must be equally relevant in assessing the suitability of current accommodation; or the reasonableness of continuing to occupy it.
For the purposes of this appeal it is also necessary to consider certain provisions of the Equality Act 2010. Section 6 (1) provides:
“(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”
Section 19 provides, so far as material:
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
Section 149 provides, so far as material:
“(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) …;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) …
(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) …
(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.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.”
Disability is a relevant protected characteristic for both section 19 and section 149.
The review
The reviewing officer had before him a number of letters from medical practitioners and others who had been involved in Ms Lomax' care. He did not take issue with any of that evidence; and said that it was clear to him that Ms Lomax had many medical problems and that she was disabled as a result. There were three letters from Ms Lomax' GP. In the first of these the GP said:
“… I think it is essential to Wendy's mental wellbeing that she moves to the Gosport area as soon as possible. Wendy has family in this area who will be able to provide her with essential support which cannot be provided in her current location.”
In the second he repeated that and went on to say:
“Wendy is currently very isolated from her family due to the distances and I am noticing a decline in her mental health.”
In the third he confirmed that Ms Lomax suffered from depression for which she was taking medication. He considered that Ms Lomax' depression “was being triggered by her isolation in her current housing.” The best treatment, he considered, was to “address the cause rather than psychiatric advice on medicating the effect.” He concluded that Ms Lomax was...
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