EWCA Civ 4, 17 January 2017
Briggs, Beatson, McCombe LJJ
The Court of Appeal has held that the four-stage approach to considering the public sector equality duty in s.149 Equality Act 2010 in Hotak v Southwark LBC  UKSC 30;  AC 811, is concerned only with vulnerability under s.189(1)(c) Housing Act 1996. In cases concerning suitability of accommodation, a review officer had to show (on a “stand-back” reading of the decision) recognition as to whether a homeless applicant had a disability and whether the accommodation was unsuitable having regard to that disability and its impact on the applicant compared to those without such a disability.
Mr Haque applied to the authority as homeless in August 2015. He suffered from back, shoulder, neck and leg pain as well as depression and anxiety. Pending its inquiries into his application, the authority provided Mr Haque with hostel accommodation at Room 315 in the Metropolitan Hostel in Kingsland Road, London E8.
The authority decided under s.184 that Mr Haque was not in priority need owing to his medical conditions. Mr Haque sought a review. The authority issued a “minded to find” letter confirming its original decision but, on 26 March 2015, the authority informed Mr Haque that it owed him the full housing duty under s.193(2) and that it would discharge that duty by keeping him at Room 315 of the hostel.
On 21 April 2015, Mr Haque sought a review of the suitability of Room 315 stating that:
i. Its cramped size restricted his movement and exacerbated his back, shoulder, leg and neck pains;
ii. Its cramped size, coupled with a “No Visitors” policy applied in the hostel, left him isolated and prevented him from receiving visits from his children, which exacerbated his depression and anxiety;
iii. The hostel’s lack of laundry facilities meant that he was required to wear dirty clothing, since his physical disability prevented him from carrying loads of laundry to a launderette; and
iv. As a result of all the above, he had been required to increase his dosage of anti-depressant medication.
After receipt of the review request, the review officer conducted inquiries of the hostel manager in response to which he was informed: that Mr Haque’s room was cluttered by a lot of personal belongings, including a big TV but that otherwise the room was of a suitable size (172 sq ft); his room was served by a lift but he needed to climb 14 steps on the way; the nearest laundrette was in the Kingsland Road; the hostel’s “No Visitors” policy could be relaxed so as to permit a friend or relative to visit him to collect and return his laundry to and from the launderette; and, that his current medication consisted of 30mg Mirtazapine for depression, and Tramadol for pain. The review officer also sought an opinion from Dr Keen of Now Medical who advised that Mr Haque’s current accommodation was suitable for him on medical grounds.
On 29 September 2015, the authority notified Mr Haque of the decision on review, finding Room 315 suitable for him, primarily because: the cramped conditions were the result of clutter, some of which – including his TV – he could put into storage offered by the Council; Mr Haque could use local parks, restaurants and eateries to meet his family and friends, or see them in their own homes; he could access the launderette by carrying his laundry in smaller amounts or by buying a wheelie bag and the “No Visitors” policy would be mitigated by permitting his family to visit him to collect and return laundry; and, Dr Keen had concluded that his condition was such that access via one flight of stairs and a lift was suitable for him. The review officer concluded that “In reaching this decision I have regard to the Equalities Act 2010 and I am sorry for the disappointment that this decision may bring you.”
Mr Haque appealed this decision under s.204, contending, inter alia, that the authority had failed: to decide whether he was disabled; to apply the public sector equality duty under s.149 Equality Act 2010 (“PSED”) when assessing whether Room 315 was suitable (contrary to the Supreme Court decision in Hotak v Southwark LBC  UKSC 30;  AC 811); and, to provide proper reasons for the decision insofar as it concerned that duty. The Circuit Judge allowed Mr Haque’s appeal on those grounds. In the course of his judgment, he concluded that Hotak, read together with the duty to give reasons for a reviewing officer’s decision, “oblige a reviewing officer to be transparent in his treatment of the issues of whether an applicant does or does not have a protected characteristic and as to whether the public sector equality duty is in play and with what effect. In my judgment, that will in almost all circumstances, require a reviewing officer to spell out, at least in summary form, his decisions on those matters. Indeed, he should go further and spell out what follows from an affirmative finding that a protected characteristic is established and that the public sector equality duty is in play”.
Judgment on appeal
The Court of Appeal allowed the authority’s appeal.
Briggs LJ (with whom the other members of the court agreed) held that Lord Neuberger’s four-stage approach in Hotak was only concerned with vulnerability under s.189(1)(c) Housing Act 1996; the general principle to be derived from Hotak was the sharp focus required of the decision-maker upon the relevant aspects of the PSED where it is engaged by the “contextual facts” of each case (para 41). In Mr Haque’s case those facts were: (a) that he had been found to be in priority need because of his medical conditions; and, (b) that his challenge to the suitability of Room 315 was based upon those medical conditions and their effects measured against the perceived shortcomings of Room 315 in meeting his needs, rather than the needs of potentially homeless people generally, or even the generality of disabled homeless people (para 42).
In this context (and, per McCombe LJ, of assistance in other cases of this type), the PSED required the review officer to show (para.43):
a. recognition that Mr Haque was disabled and therefore had a protected characteristic under the Equality Act 2010;
b. a focus upon the specific aspects of his impairments so far as relevant to the suitability of Room 315;
c. 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;
d. a focus upon his accommodation needs arising from those impairments, by comparison with the needs of persons without such impairments, and the extent to which Room 315 met those needs;
e. a recognition that Mr Haque’s needs 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; and,
f. a review of the suitability of Room 315 which paid due regard to those matters.
The Circuit Judge was, however, wrong to base his analysis on 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. In a case such as the present, where the applicant’s criticisms of the accommodation derived from identified aspects of his disabilities and their consequences, “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 s. 149” (adapting Hotak). Nor does the Equality Act 2010 require a decision-maker to give reasons for a decision to which the PSED applies (para 48).
In Mr Haque’s case, a fair “stand-back” approach to the decision showed that the review officer appreciated that Mr Haque had a disability (the first of the six-stage approach set out above – at para 50) and consideration of the review request meant that there had been a focus on the specifics of his disability, their consequences and his needs (the second to fourth of those stages – paras 52-53). The process of assessing suitability involved considering treating an applicant more favourably than a person without a disability (the fifth stage): “It by no means follows from Mr Banjo’s overall conclusion that Room 315 was suitable that his focus was not, from start to finish, on the question whether Mr Haque’s disabilities called for some form of preferential treatment” (para 55). The decision-letter, read as a whole, no material part of which is set out in the judgment, complied with the sixth stage (para 56).