What has become of the Public Sector Equality Duty in housing cases? - PowerPoint PPT Presentation

What has become of the Public Sector Equality Duty in housing cases? Shu Shin Luh, Edward Fitzpatrick, Nick Bano Monday 4 th May 2020 @gardencourtlaw

What’s Happened to the PSED in Homelessness Cases Edward J. Fitzpatrick Garden Court Chambers 4 th May 2020 @gardencourtlaw

Section 149 Equality Act 2010 “ Public sector equality duty” (1) A public authority must, in the exercise of its functions, have due regard to the need to — (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to — (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it ; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. @gardencourtlaw

Section 149 Equality Act 2010 Continued… A person with a protected characteristic may need to be treated more favourable than others so as to comply with the PSED under s.149(6). Section 6 of the 2010 Act provides that a person has a disability if he has a physical or mental impairment which has “a substantial and long - term effect” on his ability to carry out normal day -to-day activities. Section 212 of the Act defines “substantial” as “more than minor or trivial”. Further guidance is given under Schedule 1 paragraph 5. Schedule 1 paragraph 1 enables regulations to be made providing for particular conditions to be, or not to be, an impairment. @gardencourtlaw

Pieretti v Enfield LBC [2011] HLR 3 For the first time the Court of Appeal recognised that section 49A(1) Disability Discrimination Act applied not only to the formulation of “policies” but also the application of those policies in individual cases. It was held that there had been a failure in assessing “intentionality” to take into account and make further enquiries as to the disability and the possibility that the appellant’s acts and omissions in relation to non-payment of rent; were affected by a mental impairment. The approach in Cramp v Hastings had to be modified in relation to applying section 49A and it would be wrong in the light of section 49A(1) to say that a reviewing officer should consider disability only if it is obvious. On the contrary he needs to have due regard to the need for him to take steps to take account of it [32]. @gardencourtlaw

Pieretti v Enfield Continued… But the law does not require that every case decision-makers under s.184 and s.202 must take (active) steps to enquire into whether the person to be the subject of the decision is disabled and, if so, is disabled in a way relevant to the decision. That would be absurd … “due” means “appropriate in all the circumstances” … so the simple task would have been to survey all the circumstances and then to ask what steps it would be appropriate to take in the light of them [33]. In my view therefore, the reviewing officer was in breach of a duty under s.49(a)(1)(b) if she failed to take due steps to take account of a disability on the part of the appellant. … I would refine the question as follows: did she fail to make further enquiry in relation to some such feature of the evidence presented to her as raised a real possibility that the appellant was disabled in a sense relevant to whether he acted “deliberately ” [35]. @gardencourtlaw

Lomax v Gosport BC [2008] HLR 40 Appellant arguing homeless s175 as not reasonable to continue to occupy accommodation in Dorset, due to deteriorating mental health, application to Gosport rejected comparing case to those on waiting list. Successful appeal where argued sharp focus under Hotak blunted and comparative exercise needed. Lord Justice Lewison in allowing the appeal found: In broad terms I accept Mr Lewin's submission. However, the PSED applies at all stages of the decision making process, and is not to be compartmentalised. As Mr Drabble QC, for the Equalities and Human Rights Commission, submitted, in performing a comparative exercise between Ms Lomax' particular needs and disabilities on the one hand, and general housing conditions in Gosport on the other, there is a serious danger that the sharp focus becomes blunted [45]. @gardencourtlaw

Kannan v Newham LBC [2019] HLR 22 Where the Court of Appeal overturned the County Court appeal decision as to “suitability”. One of the main issues relied on was the fact that the appellant who was disabled experienced “severe” pain when climbing the fourteen external steps to get into the premises. It was accepted in the decision that he suffered from this severe pain on each occasion he climbed the stairs, this was downgraded later in the decision with reference made to the pain being “uncomfortable and inconvenient. Lord Justice Lewison : • Adopting his judgment in the case of Lomax v Gosport BC the public sector equity duty also has a significant impact on the way in which a reviewing officer is entitled to have regard to general housing conditions. The particular reasons why continuing a occupy accommodation would continue to cause problems has to be taken into account. • As in Lomax, I do not consider that the decision is saved by the reviewing officer’s subsequent reference to the public sector equality duty. There mere recitation of Lord Neuberger’s formula in para.28 of the decision letter is no substitute for actually doing the job. @gardencourtlaw

McMahon v Watford Borough Council; Kiefer v Hertsmere Borough Council [2020] EWCA Civ 497 8 April 2020 Two successful s.204 appeals relying on PSED at first instance overturned by the Court of Appeal wherein the interaction between homelessness legislation as to “vulnerability” and compliance with “PSED” reviewed. Mr McMahon suffered back neck shoulder and arm pain. It was found by Mr Perdios the reviewing officer that he could walk independently with no reported limits. It was found he was able to wake up and take the dog out for a walk. He was able to plan meals and use appliances. He suffered from asthma which it was found by Mr Perdios had no significant impact on his ability to look after himself or on his mobility. It was also acknowledged that that he had a history of alcohol and behavioural problems but it was found that he was able to access his GP and get medication. @gardencourtlaw

McMahon v Watford Continued… Mr Kiefer suffered from wrist pain caused by a road traffic accident with intermittent claudication, severe wrist pain. He suffered from Type II diabetes and also suffered from depression and low mood. The reviewing officer Ms Kaissi found that the physical condition was dealt with by painkillers but there was no information to suggest he required any special wristbands. On review it was found there was no information to suggest his mobility was currently restricted or information to suggest he was known to any specialist and requires ongoing treatments. Based on this the reviewing officer was satisfied that he had an ability to carry out daily activities. In relation to depression the reviewing officer was satisfied that his ability to manage daily activities was not affected by this condition, and that he was able to approach his GP and approach various services while homeless. It was found that he demonstrated an ability to manage daily activities without support. It was acknowledged that his conditions could amount to a disability but it was found that the health problems could be ameliorated by treatment and the treatment could continue if he was homeless and as a result he would not suffer any significant harm or detriment. @gardencourtlaw

McMahon v Watford Continued… Lord Justice Lewison carried out a detailed review of the interaction between vulnerability and the PSED by reference to previous authority and restated a number of propositions and principles to be applied: • Reiterates what Lord Neuberger said in Hotak that PSED was “complimentary” to the assessment of vulnerability. It applies to the way in which a public authority exercises its functions. Those functions derive from other laws [47-48]. • By reference to Hotak and Haque a conscientious reviewing officer may have properly performed his function and had due regard to PSED even if unaware that the equality duty was engaged. A reviewing officer need not make findings about whether or not the applicant does or does not have a disability, or the precise effect of PSED [50, 62]. @gardencourtlaw