20.50.3Hackney LBC v Haque [2017] EWCA Civ 4
In deciding whether or not accommodation provided to a disabled homeless man was suitable, the authority was not required to spell out whether he had a protected characteristic and the effect of the PSED
Facts: Mr Haque was a disabled person owed the ‘full housing duty’ under section 193 of the Housing Act 1996. He sought a review of the accommodation offered to him on the ground that it was not suitable for him, taking his disability into account. The review officer concluded that the accommodation was suitable nonetheless. A question arose as to whether the review officer should have spelt out that Mr Haque had the ‘protected characteristic’ of disability and that the PSED had applied.
Judgment: the Court of Appeal (McCombe, Beatson and Briggs LJJ) held that it had been sufficient for the review officer carefully to consider whether the accommodation had been suitable for Mr Haque in the light of his disabilities:
43. The next question is what, in that context, does the PSED as set out in section 149 of the Equality Act 2010 require of the reviewing officer on the particular facts of this case? In my judgment, it required the following:
i) 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; ie that he was disabled within the meaning of EA 2010 s6, and therefore had a protected characteristic.
ii) A focus upon the specific aspects of his impairments, to the extent relevant to the suitability of Room 315 as accommodation for him.
iii) A focus upon the consequences of his impairments, both in terms of the disadvantages which he might suffer in using Room 315 as his accommodation, by comparison with persons without those impairments (see EA 2010 s149(3)(a) ).
iv) 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 Room 315 met those particular needs: see EA 2010 s149(3)(b) and (4) .
v) 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 EA 2010 s149(6).
vi) A review of the suitability of Room 315 as accommodation for Mr Haque which paid due regard to those matters.
44. Contrary to some of Mr Arden’s submissions, 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.
45. 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.
46. 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 s149, such as those specified in Housing Act 1996 s210 (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.
47. 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 s149.