Homelessness and the public sector equality duty

London Borough of Hackney v Haque [2017] EWCA Civ 4, 17 January 2016

The respondent, Mr Haque, suffered from chronic muscoskeletal problems which in turn had given rise to significant psychological problems. The combination of his various health conditions meant that he was disabled for the purposes of s6 Equality Act 2010.

Having been asked to leave his mother’s house, where he had been living, Mr Haque applied to the Appellant, the London Borough of Hackney, as homeless. He was provided with accommodation pursuant to the main housing duty under s193(2) Housing Act 1996, it having been recognised, among other things, that he was vulnerable and that he had a priority need. The accommodation comprised a single room on the third floor of a hostel.

Mr Haque complained that the room was not suitable, within the meaning of ss206 and 210 Housing Act 1996, owing to particular aspects of his physical and mental health conditions. It was said that the cramped size of the room restricted his movement exacerbating his back, shoulder, leg and neck pain. The size of the room, together with the fact that the hostel had a ‘No Visitors’ policy meant that he was isolated, which exacerbated his depression and anxiety. In addition the hostel had no laundry. This resulted in him wearing dirty clothing, since he was physically unable to carry his clothes to the launderette. The combined effect of these points had resulted in Mr Haque increasing the dosage of his anti-depressant medication. Medical evidence was submitted in support of these contentions.

Nevertheless, the reviewing officer determined that the accommodation was suitable. In reaching his decision, the reviewing officer reasoned that the room was of ample size but was cluttered by Mr Haque’s possessions. That Mr Haque could use local parks, restaurants and eateries to meet family and friends, or see them in their own homes, and so did not need an exception to the No Visitors policy in order to avoid an adverse impact on his depression. That the nearest launderette was close enough for Mr Haque to be able to reach it carrying a moderate load. And that the council’s medical advisor (Dr Keen of Now Medical) had concluded that the evidence did not sufficiently demonstrate that the accommodation was exacerbating Mr Haque’s conditions.

The review decision was quashed on appeal to the county court. HHJ Luba QC found that the reviewing officer had either failed to comply with the requirements of the public sector equality duty under s149 Equality Act 2010, as explained in Hotak, or had failed to give sufficient reasons to demonstrate that he had complied. Specifically, the judge held that the effect of Lord Neuberger’s reasoning in relation to the public sector equality duty at [78] of the Hotak judgment, coupled with the statutory duty to give reasons contained in s203 Housing Act 1996, will in almost all circumstances oblige a reviewing officer to spell out, at least in summary form, his or her decisions on the four issues identified by Lord Neuberger in Hotak. The reviewing officer had failed to discharge this burden.

The Court of Appeal allowed Hackney’s appeal. Care needed to be taken before treating any part of the judgment in a leading case as if it were of statutory force, with a general effect divorced from the facts of the case under review. The four-stage approach outlined by Lord Neuberger in Hotak, was aimed at assisting reviewing officers in deciding whether an applicant is vulnerable. On the facts of the present case the public sector equality duty required:

1. A recognition that Mr Haque suffered from a physical or mental impairment having a substantial and long term adverse effect on his ability to carry out normal day to day activities; i.e. that he was disabled within the meaning of s6 Equality Act 2010, and therefore had a protected characteristic.
2. A focus upon the specific aspects of his impairments, to the extent relevant to the suitability of his room as accommodation for him.
3. A focus upon the consequences of his impairments, in terms of the disadvantages which he might suffer in using the room as his accommodation, by comparison with persons without those impairments: see s149(3)(a) Equality Act 2010.
4. A focus upon his particular needs in relation to accommodation arising from those impairments, by comparison with the needs of persons without such impairments, and the extent to which the room met those particular needs: see s149(3)(b) and (4) Equality Act 2010.
5. A recognition that Mr Haque's particular needs arising from those impairments might require him to be treated more favourably in terms of the provision of accommodation than other persons not suffering from disability or other protected characteristics. See s149(6) Equality Act 2010.
6. A review of the suitability of the room as accommodation for Mr Haque which paid due regard to those matters.

On a fair and ‘stand back’ reading of the decision as a whole, the reviewing officer had given sufficient reasons to show that he had complied with these requirements.

Click here for the judgment.