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Property: McMahon v Watford BC; Kiefer v Hertsmere BC [2020] EWCA Civ 497, 8 April 2020

Barbara Zeitler continues to analyse the way Public Sector Equality Duty (PSED) are being exercised in relation to homelessness proceedings in light of the cases McMahon v Watford BC; Keifer v Hertsmere BC [2020] EWCA Civ 497

Following on from Luton Community Housing Ltd v Durdana (also discussed in this round up), the Court of Appeal has handed down an important decision on the interaction of the test of vulnerability under s. 189(1)(c) Housing Act 1996 (‘HA’) and the Public Sector Equality Duty (‘PSED’) under s. 149 Equality Act 2020 (‘EqA’).

Pursuant to s. 189(1)(c) HA 1996, a person has priority need for accommodation if s/he is ‘vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason’. Hotak v LB Southwark & other appeals [2016] AC 811 provides that an officer carrying out a review of a homelessness decision has to ‘focus very sharply’ on whether the application us under a disability (or has another relevant protected characteristic), (ii) the extent to such disability, (iii) the likely effect of such disability, when taken together with other features, on the application if and when homeless, and (iv) whether the applicant is as a result ‘vulnerable’.

The PSED applies to the way in which a public authority exercises its functions; it is not a free-standing duty.   It is a duty to have regard to the goals identified in s. 149 EqA. Pursuant to Haque v Hackney LBC [2017] PSTR 769, a reviewing officer need not make express findings about whether an applicant for housing does or does not have a disability or the precise effect of the PSED.

In these two joined cases, one of the homeless applicants suffered from mobility problems, the other from a variety of physical and mental health problems. In both cases, the first instance judges had held that the reviewing officer had correctly assessed the vulnerability of the homeless applicant, but had not complied with the local authority’s duty under the PSED. The judges were troubled by the fact that there had not been any consideration whether the homeless applicants were disabled within the meaning of EqA.

Examining the relationship between vulnerability under the HA and the PSED under EqA, Lewison LJ noted that while there was a substantial overlap between a vulnerability assessment and the PSED, there were also differences. The most important difference was that the question whether a person had a disability, ie one of the protected characteristics under EqA, was to be assessed without reference to measures being taken to correct or treat that disability, whereas vulnerability was to be assessed by taking account of such measures [para. 45]. A reviewing officer did not need to make findings whether an applicant had or did not have a disability or the precise effect of the PSED [para. 62]. The Court held that the greater the overlap between a statutory duty under consideration and the PSED, performing the statutory duty will make compliance with the PSED more likely. In the case of vulnerability, there was a substantial overlap with the PSED [paras. 67-68]. The first instance judges had taken too narrow a view of the reviewing officers’ decisions read as a whole.   The Court concluded that there: ‘is a real danger of the PSED being used as a peg on which to hang a highly technical argument that an otherwise unimpeachable vulnerability decision should be quashed…..[The PSED] is not there to set technical traps for conscientious attempts by hard-pressed reviewing officers to cover every conceivable issue. Nor is it a disciplinary stick with which to beat them’ [para. 89].

This decision gives considerable latitude to reviewing officers. Nevertheless, a ‘sharp focus’ on the extent of a person’s dis/ability and consequences of the same is required.


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Barbara Zeitler

Barbara Zeitler

Head of Property

Call: 2001

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