Vulnerability and the PSED: No arid debates. No straitjackets. No disciplinary stick

The Court of Appeal has upheld the decisions of two councils where reviewing officers had considered the Public Sector Equality Duty without making clear findings as to whether the applicant in each case was disabled, and concluded that those applicants were not vulnerable. Michael Paget, Zoë Whittington, Catherine Rowlands and Rowan Clapp report.

When deciding whether someone is in priority need for homeless assistance, the Court of Appeal has clarified, in the joined cases of McMahon v Watford Borough Council and Kiefer v Hertsmere Borough Council, that the job of the local authority is not to apply a label to the potentially disabled, but to understand them.

In the latest of a series of judgments from the Court of Appeal explaining the decision of the Supreme Court in Hotak v Southwark LBC [2015] UKSC 30, the Court has clarified the extent to which a reviewing officer needs to make findings as to disability before they can properly fulfil the PSED.

In Hotak, Lord Neuberger had noted that the PSED adds "something" to the duty, already posed by the Housing Act 1996, to investigate the circumstances of an applicant with an actual or possible disability (or other protected characteristic).

"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 'vulnerable'." [78]

Various cases since then have asked what that "something" is, in practice.

Here, two reviewing officers had considered the PSED without making clear findings as to whether the applicant in each case was disabled, and had concluded in each case that the applicant was not vulnerable despite having some illnesses or injuries. The applicants challenged those decisions on the basis that, in order to fulfil the PSED in the context of a review of a decision as to vulnerability a reviewing officer has to follow a formulaic approach, starting with a finding of whether the applicant met the statutory definition of disability. Their appeals succeeded before, in McMahon, HHJ Bloom, and in Kiefer, HHJ Rochford.

The local authorities appealed, and pointed out that in the case of Kanu, joined to Hotak¸ Lord Neuberger had accepted that a conscientious reviewing officer can comply with the PSED even without knowing it existed.

The Court of Appeal (with Lewison LJ giving the lead judgment) emphasised the approach that a Court should take when considering the decision of a local authority:

44. The key points here are:
i) To avoid an arid debate.
ii) Not to force reviewing officers into a straitjacket; and
iii) To adopt a test that is practical.

This emphasis on practicality underpinned the Court's decision to uphold the decisions made by the local authority in each case. It noted that when considering whether someone has a disability (for the purposes of the Equality Act 2010) it is necessary to leave out of consideration any medication they might be using.

Conversely, when considering whether they are vulnerable, the effect and availability of that medication must be factored in. The Court noted that Lord Neuberger had set out four matters in his judgment in Hotak, but it rejected the submission that these four factors had to be worked through in order:

It would be extraordinary if, having dismissed the debate about whether the assessment of vulnerability was a two-stage or a one-stage test as "arid", Lord Neuberger intended to lay down a rigid four stage test which had to be applied in all cases engaging the PSED. That would, indeed, be to force reviewing officers into a straitjacket.

As to an express finding of disability being a pre-requisite, they dismissed this as an arid argument:

I agree with Mr Paget and Ms Rowlands that it would be highly artificial if, in order to answer the first three questions, the reviewing officer had to imagine a world in which the applicant was bereft of any support or medication; but then, in order to answer the fourth question, the reviewing officer had to add back in such support and medication as was available to the applicant. That would not, in my judgment, meet Lord Neuberger's criterion of a practical test.

The Court also emphasised that the PSED is not a freestanding duty, but applies to the way in which a public authority exercises its functions. What amounts to compliance with the PSED will vary dependent on the function being undertaken by the relevant public authority. In a homelessness context, however, the assessment of an applicant's vulnerability is likely to encapsulate the relevant PSED considerations because:

The greater the overlap between the particular statutory duty under consideration and the PSED, the more likely it is that in performing the statutory duty the authority will also have complied with the PSED even if it is not expressly mentioned
[...][and]
In the case of a vulnerability assessment, there is substantial overlap between the requirements of the homelessness code and the PSED

Lord Justice Lewison was also at pains to emphasise the need for a causal link between the disability and homelessness:

The relevant feature which is said to give rise to vulnerability must have a causative link with the effect of homelessness on the applicant; an impairment of a person's ability to find accommodation or, if he cannot find it, to deal with the lack of it. The overall question is whether, taking everything into account, the applicant is "significantly more vulnerable than ordinarily vulnerable" as a result of being rendered homeless.

An inability to work is only relevant if it would have an effect on the applicant if and when homeless. In other words, what needs to be considered in an assessment of vulnerability is that which is relevant to a person's ability to deal with the consequences of being homeless.

However extensive the PSED is, he said, it is confined to the disabilities which are relevant to the particular decision.

Allowing both appeals, Lewison LJ summed them up:

One of the striking features of both appeals is that there is no evidence that any of the various medical conditions (whether physical or mental) has any real effect on the ability of either Mr McMahon or Mr Kiefer to carry out normal day-to-day activities.

All this goes to show 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 assessment should be quashed. I do not consider that that is why the PSED exists. It 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.

One must, of course, sympathise with anyone who is made homeless, especially if they are disabled. But the pressure on local authorities to house the homeless is such that with limited stock available, only those who are genuinely vulnerable can be given priority.

Because there had been no breach of the PSED in McMahon the Court did not need to go on and consider whether section 31(2A) of the Senior Courts Act 1981 should be applied to relief in the same way that judicial review principles are generally applied in section 204 HA 1996 appeals in the County Court. This is an issue which keeps cropping up. The Court did not need to bite the bullet in this case, and so it left it for another day. Instead a case is needed where a local authority accepts that its review decision breaches public law but contends that it is highly likely to have made the same review decision anyway.

Michael Paget and Zoë Whittington appeared for Watford Borough Council and Catherine Rowlands and Rowan Clapp appeared for Hertsmere Borough Council. All are at Cornerstone Barristers.

This is the second time in recent weeks that Cornerstone Barristers have successfully represented Hertsmere, having recently succeeded in James v Hertsmere BC [2020] EWCA Civ 489.