PSED

January 18th, 2017

In Hackney LBC v Haque (2017) EWCA Civ 4 the Council as local housing authority succeeded in an appeal against a decision that it had failed to comply with the Public Sector Equality Duty when determining whether accommodation which it provided pursuant to its duties under Part VII of the Housing Act 1996 (“HA 1996”) to a disabled homeless man was suitable. The duty in question was the full housing duty under Section 193.  These duties had been considered by the Supreme Court in Hotak v Southwark LBC (2016) AC 811. In the Hotak case, the PSED impacted upon the housing authority’s determination of the question whether the applicant had a priority need ie whether the authority owed him the full housing duty at all. In the Haque case the PSED impacted upon the question, raised by an applicant to whom the full duty is owed, whether the accommodation already provided was “suitable” within the meaning of HA Sections 206 and 210.  The PSED is of course engaged in the course of any decision-making about the suitability of accommodation made available for occupation under HA Section 193(2), when the applicant is in priority need for accommodation because he is vulnerable as a result of disability. 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 Section 149.

In the Haque case the Council made available for the occupation of Mr 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 Section 202(1)(f). The Council’s reviewing officer decided that the accommodation was suitable for Mr Haque. The County Court Judge quashed that decision because, in his view, the reviewing officer, Mr Banjo, had not demonstrated that he had complied with the PSED when conducting his review.

 

In allowing the Council’s appeal, Briggs LJ, with whom Beatson and McCombe LJJ agreed, set out the relevant underlying principles at paragraphs 20-24 inclusive: (1) The aim of the PSED is to bring equality duties into the main-stream, so that they become an essential element in public decision making; (2) The duty is a matter of substance rather than form; (3) The concept of due regard is to be distinguished from a requirement to give PSED considerations specific weight. As regards the PSED and the housing duty in combination, Briggs LJ said:-

“44.    …  The PSED did not in my judgment require Mr Banjo to consider whether Mr Haque needed accommodation which was more than suitable for his particular needs. It required him to apply sharp focus upon the particular aspects of Mr Haque’s disabilities and to ask himself with rigour, and with an open mind, whether the particular disadvantages and needs arising from them were such that Room 315 was suitable as his accommodation.

 

  1. Nor did the engagement of the PSED in relation to Mr Haque’s application for a suitability review in any way absolve Mr Banjo from the requirement to bring his experienced judgment to bear upon those questions. He was not obliged to accept Mr Haque’s assertions of impairments at face value, still less their alleged effect upon his use of Room 315 as accommodation. To the extent that the alleged impairments and their consequences were matters for medical expertise, he was entitled if not obliged to take expert advice (as he did). He was no less obliged to apply rigour to the question whether Mr Haque’s challenges to the suitability of Room 315 as his accommodation were made out in fact, than in any other suitability review, whether or not initiated by a person with protected characteristics.

 

  1. Nor in my judgment does the engagement of the PSED in a particular case absolve the reviewing officer from taking into account factors relevant to suitability other than those thrown into focus by the terms of Section 149, such as those specified in HA Section 210 (and Orders made pursuant thereto) and those set out in the Code of Guidance. As McCombe LJ said in Bracking at paragraph 60, considerations required to be taken into account are to be placed side by side with all other pressing circumstances of whatever magnitude.

 

  1. I consider that the judge was wrong to base his analysis upon a supposed general principle “in almost all circumstances” requiring the reviewing officer to spell out in express terms reasoning about whether an applicant does or does not have a protected characteristic, whether the PSED duty is in play and if so with what precise effect, even though the adoption of such a disciplined approach may in many cases put the issue of compliance with the PSED beyond reasonable doubt. In a case such as the present, where all the applicant’s criticisms of the adequacy of his accommodation derive from precisely identified aspects of his disabilities, and from their alleged consequences, it seems to me that, adapting Lord Neuberger’s words in paragraph 79 of Hotak, a conscientious reviewing officer considering those objections in good faith and in a focussed manner would be likely to comply with the PSED even if unaware of its existence as a separate duty, or of the terms of Section 149.

 

  1. EA Section 149 does not require the decision maker to give any reasons for a decision to which the PSED applies. HA Section 203(4)(a) does require the housing authority to give reasons for a decision on review which confirms an original decision on any issue against the interests of the applicant. Generally speaking, this requires the reviewing officer to enable the applicant to understand why he has lost, and to enable him to judge whether the authority have properly fulfilled their statutory obligations including, where it is engaged, the PSED: … But this imposes no single or uniform standard as to how compliance with a statutory duty may be demonstrated. …”

 

“57.    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.”

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