Kanu v Southwark LBC

The Court of Appeal allowed the Council's appeal and restored the review decision. The appeal concerned the proper application of the homelessness priority-need test in section 189(1)(c) of the Housing Act 1996 and the review procedure under section 202. The central legal principle applied was the Pereira test (whether, when homeless, the applicant is less able to fend for himself than an ordinary homeless person). The court held that the review officer was entitled to conclude that, although the applicant had significant physical and mental health problems, the practical support available from his wife and adult son meant he was not shown to be less able to cope than an ordinary homeless person.

The court rejected the Recorder's criticisms that the review decision was procedurally unfair for (i) failing adequately to evaluate whether the household support would remain effective when street homeless, (ii) reaching conclusions about access to medical treatment without fresh medical evidence, (iii) failing to take account of alleged deterioration in health, and (iv) giving perfunctory treatment to the public sector equality duty under section 149 of the Equality Act 2010. The court held the review officer had considered the relevant materials, made factual findings open to her and did not err in law; it further held that the public sector equality duty added nothing beyond the statutory homelessness test in the particular circumstances.

Background and procedural history. The London Borough of Southwark appealed from a Lambeth County Court decision of Mr Recorder Matthews (22 November 2013) which had quashed the Council's review decision under section 202 of the Housing Act 1996 that Mr Kanu was not in priority need under section 189(1). The Recorder's order followed an earlier county court judgment (HH Judge Blunsdon, 7 November 2012) quashing an earlier review decision and requiring a re‑review. The review officer again decided Mr Kanu was not in priority need; the Recorder quashed that decision on grounds of unfairness and inadequate treatment of the equality duty. The Council appealed to the Court of Appeal.

Nature of the application and relief sought. The Council sought to overturn the Recorder's quashing of its review decision and to restore the review officer's decision that Mr Kanu was not in priority need.

Facts and issues. The appellant (Mr Kanu) had chronic physical conditions (including hepatitis B, hypertension and back pain) and psychiatric symptoms including suicidal ideation and possible psychotic depression. The Council's Medical Assessment Service had recommended medical priority; subsequently two consultant psychiatrists and the GP provided reports, some indicating vulnerability. The review officer concluded, however, that because Mr Kanu lived with his wife and adult son who provided daily support, he would not be less able than an ordinary homeless person and therefore was not in priority need. The issues the court framed were whether the review officer (i) gave adequate, fair reasons and evaluation when relying on household support to negate vulnerability (see Hotak and Pereira principles), (ii) was obliged to obtain fresh medical opinion before reaching conclusions about access to treatment, (iii) failed to take into account evidence of deterioration, and (iv) complied with the public sector equality duty under section 149 of the Equality Act 2010.

Court’s reasoning and conclusions. The Court of Appeal held that (a) the Pereira test is the correct legal test for vulnerability under section 189(1)(c) and a conclusion that household support can obviate vulnerability is in principle open (Hotak); (b) the review officer had considered the medical evidence, interview notes and the practical effect of family support and made factual findings open to her—there was no obligation to refer back to medical advisers for an opinion on how family support would operate when homeless because that is a mixed factual/practical assessment for housing officers; (c) the review officer could properly make findings about continued access to treatment on the materials before her; (d) the GP letter relied on by the Recorder predated later psychiatric reports and did not require a different conclusion; and (e) in the circumstances the public sector equality duty did not require the officer to take steps different from those already required by sections 189 and 193 of the Housing Act 1996. Accordingly the appeal was allowed and the review officer's decision reinstated.

Subsidiary findings: the Court considered the drafting quality of the review letter (diffuse and repetitive) but held that, applying the guidance to interpret review decisions benevolently, the letter contained sufficient specific factual findings and reasoning and was not vitiated by procedural unfairness or legal error.

Appeal allowed. The Court of Appeal held that the review officer's conclusion — that the practical support of the applicant's wife and adult son meant he was not shown to be less able than an ordinary homeless person under section 189(1)(c) of the Housing Act 1996 — was open on the facts, was supported by adequate reasoning and did not amount to a legal or procedural error. The public sector equality duty under section 149 of the Equality Act 2010 did not require the officer to take steps beyond the statutory homelessness enquiry in the circumstances of this case.

Appeal to the Court of Appeal from Lambeth County Court (Mr Recorder Matthews) decision dated 22 November 2013 quashing the Council's review under section 202 of the Housing Act 1996. The Recorder's decision followed an earlier county court decision (HH Judge Blunsdon, 7 November 2012) which had quashed an earlier review decision. The Court of Appeal allowed the Council's appeal and restored the review officer's decision ([2014] EWCA Civ 1085).