Homelessness appeals and the PSED

21 April 2020

Sarah Salmon examines the recent decision in McMahon v Watford Borough Council; Kiefer v Hertsmere Borough Council [2020] EWCA Civ 497. The Court of Appeal was critical of the risk of using a highly technical PSED arguments in homelessness appeals to attempt to quash “otherwise unimpeachable vulnerability assessment[s]”. Lord Justice Lewison made it clear that the PSED is not designed to set technical traps nor is it a disciplinary stick with which to beat reviewing officers.

The judgment is unlikely to prevent such arguments being taken against decisions but it should give conscientious and busy homelessness teams some comfort. If the correct approach is taken on the question of vulnerability, any challenge in relation to the PSED should prove difficult.

The judgment is also a reminder that if such points are to be taken, advisors may wish to ensure there is evidence of the impact any medical condition has on an applicant’s ability to carry out day-to-day activities. It was said to be a “striking feature of both appeals” that there was no such evidence.

The proceedings

On 8 April 2020, the Court of Appeal handed down judgment in two appeals concerning the interaction between a decision as to whether or not an applicant for homelessness assistance under Part 7, Housing Act 1996 was “vulnerable” under section 189(c) of the Act and compliance with the public section equality duty in section 149, Equality Act 2010 (the “PSED”). Both appeals were brought by the local authorities; the judges at first instance quashed the decisions of the reviewing officer.

First instance decisions

In McMahon, the decision was quashed. Although the reviewing officer had taken the correct approach to vulnerability, he had not demonstrated proper compliance with the PSED: He had not said in terms whether he considered Mr McMahon to be disabled within the meaning of section 6, Equality Act 2010.

In Kiefer, a similar approach was taken and the decision quashed on the basis that the reviewing officer had stated Mr Keifer’s depression “could be” regarded as a disability and reference had been made to treatment for the condition. Again, the judge found no flaw in the decision on vulnerability.

The Court of Appeal

The Court of Appeal - recognising they were concerned with the reviewing officers’ decisions, rather than the decisions of the judges at first instance – allowed both appeals.

  • In relation the interaction between vulnerability and the PSED, the key points to take from Hotak v Southwark LBC [2015] UKSC 30; [2016] AC 811,[1] were:
  • to avoid an arid debate;
  • not to force reviewing officers into a straitjacket; and,
  • to adopt a test that is practical (judgment at [42]-[44]).
  • There are differences between vulnerability and the PSED (judgment at [45]-[46]). The most important one for the Court of Appeal was how “disability” and “vulnerability” are assessed. Whether a person has a disability has to be assessed without reference to measures being taken to treat or correct the disability. Vulnerability, however, is to be assessed taking into account such measures. The other differences were those recognised by the Court in Panayiotou v Waltham Forest LBC [2017] EWCA Civ 1624; [2018] QB 1232.[2]
  • The PSED is not a free-standing duty but applies to how a public authority exercises its functions in accordance with the laws it is applying. The relevant function in cases such as these was to determine whether an applicant was “vulnerable” under section 189(1)(c), Housing Act 1996 (judgment at [48]).
  • Lord Neuberger in Hotak did not lay down a rigid test (judgment at [52]-[56]).
  • A reviewing officer failing to make a determination as to whether or not someone is disabled for the purposes of the Equality Act 2010 is not a fatal flaw in the decision-making process nor is a reviewing officer failing to make findings about the precise effect of the PSED (judgment at [54] and [62]).
  • The greater the overlap between the particular statutory duty and the PSED, the more likely it is that by complying with the statutory duty there will be compliance with the PSED. In homelessness cases where vulnerability is being assessed, there is a substantial overlap (judgment at [67]-[68]).
  • Simply setting out the PSED will not save a vulnerability assessment if a reviewing officer has failed to address the relevant question (judgment at [68]).
  • Where a decision is made that a person is not vulnerable but that they are disabled for the purposes of the Equality Act 2010, the Court could not see how it could be realistically suggested that the disability gives them automatic priority. What could be impacted is, inter alia, how the duty is satisfied where a person is found to be in priority need, not intentionally homeless and disabled under the Equality Act (judgment at [73]-[75]).

Both reviewing officers, by focusing on the medical conditions in their assessment of vulnerability and considering the correct questions, complied with the PSED. The decisions were not vitiated by, inter alia, the failure to make a finding as to whether or not an applicant was disabled for the purposes of the Equality Act and the reference to treatment of medical conditions. Both judges at first instance adopted far too narrow a view.

[1] See Chambers’ February 2016 housing newsletter.

[2] See Sarah Salmon’s homelessness update in Local Government Lawyer.