5.64.1Hotak, Kanu and Johnson v Southwark LBC and Solihull MBC [2015] UKSC 30, [2015] 2 WLR 1341
A homeless person is in priority need if he or she is vulnerable compared with the average person not the average homeless person. When deciding whether or not a particular individual has a priority need, the housing officer had to discharge the PSED.
Facts: Mr Hotak had learning and mental health difficulties and Southwark decided that he was not in priority need because he had his brother’s support. Mr Kanu had mental and physical health problems and Southwark decided that he was not in priority need because of support from his wife and son. Mr Johnson suffered from heroin addiction and a range of relatively low level physical and mental health problems and Solihull decided that he was not in priority need because he was not more vulnerable than the average homeless person.
Judgment: the Supreme Court (Neuberger, Hale, Clarke, Wilson and Hughes JJSC) held that the true question is whether the applicant was vulnerable compared with the average person, if made homeless, not compared with the average homeless person and that local authorities could take into account third party support, but only where it was available on a consistent and predictable basis.
As to the general principles underpinning the PSED, Lord Neuberger said this:
73. The equality duty has been the subject of a number of valuable judgments in the Court of Appeal. Explanations of what the duty involves have been given by Dyson LJ (in relation to the equivalent provision in the Race Relations Act 1976) in Baker v Secretary of State for Communities and Local Government (Equality and Human Rights Commission intervening) [2009] PTSR 809, paras 30–31, Wilson LJ (in relation to section 49A of the Disability Discrimination Act 1995, as inserted by section 3 of the Disability Discrimination Act 2005 , the predecessor of section 149 of the 2010 Act) in Pieretti v Enfield London Borough Council [2011] PTSR 565, paras 28 and 32, and McCombe LJ in Bracking v Secretary of State for Work and Pensions [2014] Eq LR 60, para 25 which pulls together various dicta, most notably those of Elias LJ in R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] HRLR 13, paras 77–78, 89. I do not propose to quote those passages in extenso: they are not challenged in these appeals, and in my view, at least as at present advised, rightly so.
74. As Dyson LJ emphasised in the Baker case [2009] PTSR 809 , para 31, the equality duty is ‘not a duty to achieve a result’, but a duty ‘to have due regard to the need’ to achieve the goals identified in paragraphs (a) to (c) of section 149(1) of the 2010 Act. Wilson LJ explained that the Parliamentary intention behind section 149 was that there should ‘be a culture of greater awareness of the existence and legal consequences of disability’: Pieretti v Enfield London Borough Council [2011] PTSR 565, para 28. He went on to say in para 33 that the extent of the ‘regard’ which must be had to the six aspects of the duty (now in subsections (1) and (3) of section 149 of the 2010 Act) must be what is ‘appropriate in all the circumstances’. Lord Clarke of Stone-cum-Ebony JSC suggested in argument that this was not a particularly helpful guide and I agree with him. However, in the light of the word ‘due’ in section 149(1) , I do not think it is possible to be more precise or prescriptive, given that the weight and extent of the duty are highly fact-sensitive and dependent on individual judgment.
75. As was made clear in a passage quoted in the Bracking case [2014] Eq LR 60 , para 60, the duty ‘must be exercised in “substance, with rigour, and with an open mind”’: per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2009] PTSR 1506, para 92. And, as Elias LJ said in the Hurley case [2012] HRLR 13, paras 77–78 it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that ‘there has been a rigorous consideration of the duty’. Provided that there has been ‘a proper and conscientious focus on the statutory criteria’, he said ‘the court cannot interfere … simply because it would have given greater weight to the equality implications of the decision’.
76. The Pieretti case [2011] PTSR 565 is particularly in point as it concerned the interrelationship of Part VII of the 1996 Act and what is now the 2010 Act, and the Court of Appeal rightly held that what is now the public sector equality duty applied to a housing authority when performing its functions under Part VII. At para 28, Wilson LJ referred to ‘the six specified aspects of the duty’ in the predecessor to subsections (1) and (3) of section 149 as ‘[complementing] the duties of local authorities under Part VII’.
As to how the PSED falls to be discharged in the context of deciding whether a particular individual has a priority need:
78. In cases such as the present, where the issue is whether an applicant is or would be vulnerable under section 189(1)(c) if homeless, an authority’s equality duty can fairly be described as complementary to its duty under the 1996 Act. More specifically, each stage of the decision-making exercise as to whether an applicant with an actual or possible disability or other ‘relevant protected characteristic’ falls within section 189(1)(c)’, must be made with the equality duty well in mind, and ‘ust be exercised in substance, with rigour, and with an open mind’ There is a risk that such words can lead to no more than formulaic and high-minded mantras in judgments and in other documents such as section 202 reviews. It is therefore appropriate to emphasise that the equality duty, in the context of an exercise such as a section 202 review, does require the reviewing officer to focus very sharply on (i) whether the applicant is under a disability (or has another relevant protected characteristic), (ii) the extent of such disability, (iii) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is as a result ‘ulnerable’
79. Mr Ashley Underwood QC argued that the equality duty added nothing to the duty of an authority or a reviewing officer when determining whether an applicant is vulnerable. I quite accept that, in many cases, a conscientious reviewing officer who was investigating and reporting on a potentially vulnerable applicant, and who was unaware of the fact that the equality duty was engaged, could, despite his ignorance, very often comply with that duty. However, there will undoubtedly be cases where a review, which was otherwise lawful, will be held unlawful because it does not comply with the equality duty. In the Holmes-Moorhouse case [2009] 1 WLR 413 , paras 47–52, I said that a ‘benevolent’ and ‘not too technical’ approach to section 202 review letters was appropriate, that one should not ‘search for inconsistencies’, and that immaterial errors should not have an invalidating effect. I strongly maintain those views, but they now have to be read in the light of the contents of para 78 above in a case where the equality duty is engaged.