Case comment: London Borough of Hackney v Haque [2017] EWCA Civ 4

This post provides commentary to an important recent housing case.

In LB Hackney v Haque [2017] EWCA Civ 4, the Court of Appeal was asked to decide on the extent of the duties imposed by s.149 Equality Act 2010 (the ‘public sector equality duty’, or PSED) with regards to reviews conducted under the Housing Act 1996 into the suitability of accommodation offered to homeless persons.

The full judgment is available here. Numbers in square brackets refer to paragraphs in the judgment as it appears on BAILII.

The PSED in brief

The term ‘public sector equality duty’ refers to s.149 of the Equality Act 2010. The Act itself was intended to be a simplification, and in some cases, an extension, of the UK’s existing equality legislation. It is now the principle source of domestic discrimination law.

The Act sets out, in sections 4 to 12, a list of ‘protected characteristics’, the possession of which may give rise to potential discrimination. They are, namely, age (s.5), disability (s.6), gender reassignment (s.7), marriage and civil partnership (s.8), race (s.9), religion or belief (s.10), sex (s.11) and sexual orientation (s.12).

The protected characteristics each within them have further subsections and definitions. Race, for example, includes colour, nationality, and ethnic or national origins. Disability includes physical and mental impairments. Courts, however, have not always been prepared to ‘read into’ or extend the protected characteristics beyond those expressly referred to in the Act (for example in the case of Taiwo v Olaigbe [2016] UKSC 31).

Section 149 extends the pre-existing equality laws by imposing positive obligations on public bodies to have proper regard to the impact of their decisions. In particular the PSED requires public authorities to have “due regard” to:

  • The need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010 (section 149(1)(a));
  • The need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it (section 149(1)(b)); and,
  • The need to foster good relations between persons who share a relevant protected characteristic and those who do not share it (section 149(1)(c)).

The facts of the case

After taking a homelessness application, Mr Haque was found to have a priority need and Hackney determined that they owed him the ‘full housing duty’ under s.193 HA 1996. He was placed in a room in a hostel (‘Room 315’) [4].

Mr Haque requested a ‘suitability review’ on several grounds, including that the stairs, lack of laundry facilities and cramped size exacerbated his shoulder, back, and neck pain, and that the hostel’s ‘No Visitors’ policy exacerbated his depression and anxiety [10].

It was common ground that Mr Haque was physically and mentally impaired and thus had a protected characteristic within the meaning of s.6 of the Equality Act. The PSED was thus engaged.

The reviewing officer determined that the room was in fact suitable for Mr Haque’s needs, and stated in the review that ‘I have had regard to the Equalities Act 2010’, although no mention was made of the PSED [14].

Mr Haque appealed to the County Court. The Circuit Judge allowed Mr Haque’s appeal on the sole ground that the reviewing officer had not adequately demonstrated that he had complied with the PSED when he conducted his review [5]. Hackney appealed to the Court of Appeal.

The Court’s decision

The Court of Appeal held that the PSED did not require a single or uniform standard as to how compliance may be demonstrated. Nor does the Equality Act require the decision-maker to give any reasons for a decision to which the PSED applies [48]. What is required is the ‘sharp focus’ of the decision-maker ‘upon the relevant aspects of the PSED where it engaged by the contextual facts about each particular case’ [41].

In Mr Haque’s case, the PSED required of the reviewing officer [43]

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; i.e. that he was disabled within the meaning of EA s. 6, 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 s. 149(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 s. 149(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 s. 149(6).

vi) A review of the suitability of Room 315 as accommodation for Mr Haque which paid due regard to those matters.

In the present case, the Court was satisfied that even if the wording of the Equality Act was not used by the reviewing officer, the focus and detail contained in the review with regards to the suitability of the accommodation and the needs and impairments of Mr Haque demonstrated that the officer had complied with the duties set out in s.149 [56].

Comment

The PSED has come into its own in housing cases as a separate ground of appeal, particularly following the Supreme Court’s decision in Hotak and Others v London Borough of Southwark [2015] UKSC 30 (at paras. 78 and 79).

The differences in the decision-making process necessary for questions of ‘priority need’ compared with ‘suitability’ justifies the clarification that this case provides. This is because the determination of vulnerability in respect of a local authority’s housing duty to a homeless applicant is a fundamentally different exercise to assessing the suitability of a property already provided, even if it is for that same applicant.

Haque has been described elsewhere as ‘a victory for substance over form’. Certainly, substance over prescribed formulations of stated compliance with a legal duty is preferable to a ‘tick box’ exercise. It is to be hoped that the judgment, and in particular the six stages set out by Brigg LJ (at [43]) will serve as a warning to those who would otherwise seek to substantiate compliance with the PSED merely by repeating s.149 in decision letters. As Lord Neuberger said in Hotak (at para. 79), there will undoubtedly be cases where a s.202 review, which was otherwise lawful, will be unlawful because it does not comply with the PSED.

Nevertheless, the particular facts of this case do make this result rather bittersweet for Mr Haque and others in his position. Mr Haque’s reviewing officer devoted no more than half a sentence to the Equality Act (as reported at [14]).

It is submitted that, with respect to their Lordships, having regard to the duties set out in s.149 does require reviewing officers to employ the language of the Equality Act. This is not to say that the PSED can only be complied with by using the precise wording of the Act in every instance. But, otherwise, the ‘sharp focus’ that Briggs LJ held to be necessary to comply with the duties may not be evident, and at best would be hard to detect, in any suitability review of accommodation occupied by vulnerable or disabled people.

This is because properly conducted suitability reviews by necessity involve a rigorous examination of all of the circumstances of the accommodation in relation to the needs and means of all of the occupiers. To suggest that a conscientious reviewing officer conducting a suitability review could comply with the PSED without expressly acknowledging its existence, or even whilst unaware of its existence, is to diminish and undermine the role and purpose of the duties established in the Equality Act.

In other words, had the PSED not existed it is hard to conceive if the reviewing officer’s decision in this case would have been any different save for the line about having ‘had regard to the Equalities Act’ [sic]. It is respectfully submitted that, even if the material outcome regarding the suitability of the accommodation may well have been the same, this cannot be correct.

Leave a Reply

Your email address will not be published. Required fields are marked *