Kanu v London Borough of Southwark

Under section 189(1)(c) of Housing Act 1996, vulnerability is assessed by comparing the applicant’s ability to cope when homeless with that of an ordinary homeless person. The inquiry is practical and fact-sensitive. A family support network may be taken into account, but its availability and effectiveness after homelessness must be fairly evaluated. A reviewing officer need not obtain further medical evidence where the issue is practical rather than purely medical. Access to treatment is also a factual question. The public sector equality duty requires due regard to disability, but in this priority-need context it adds nothing to the statutory vulnerability inquiry where disability has been properly considered.

The Council’s review officer upheld a decision that Mr Kanu, who suffered mental and physical health problems, was not in priority need. The review officer considered that his wife and adult son could support the household if it became street homeless. On appeal under section 204 of the Housing Act 1996, the Lambeth County Court quashed that decision for defects concerning family support, access to medical treatment, alleged deterioration in Mr Kanu’s condition and the public sector equality duty. The Council appealed. The central issue was whether the review officer had lawfully assessed Mr Kanu’s vulnerability in the circumstances in which he would actually be homeless.

1. Disposition. Lord Justice Underhill, with Lord Justices Kitchin and Aikens agreeing, allowed the Council’s appeal. The review officer’s decision therefore stood. The Recorder had identified no specific legal or procedural flaw warranting quashing.
2. Under section 189(1)(c) of the Housing Act 1996, the governing question was the Pereira test: whether, when homeless, Mr Kanu would be less able to fend for himself than an ordinary homeless person, so that injury or detriment would result. Following Hotak, the inquiry was fact-sensitive and had to address the position as it would be after homelessness. Family support could counteract vulnerability, but its practical effectiveness had to be fairly evaluated.
3. The review officer had carried out that evaluation. She made findings, supported by the interviews and medical material, about the assistance which Mr Kanu’s wife and son could provide with medication, appointments, self-care and other daily tasks. She was not required to refer the issue back to a doctor. Vulnerability was not purely a medical question, and housing officers could assess the practical effect of support using their own experience.
4. The review officer was also entitled to find that Mr Kanu could continue to access medical treatment. Registration with a general practitioner did not automatically end on homelessness. Any practical difficulties concerning communication or transport were matters for factual assessment, and particular obstacles had not been raised. The evidence of stress-related deterioration did not establish vulnerability: the relevant question remained comparative ability to cope with homelessness.
5. The public sector equality duty under section 149 of the Equality Act 2010 applied. It required due steps, appropriate to the circumstances, to take account of disability. In this case, however, the statutory priority-need inquiry already directed attention to the disadvantage caused by disability. The equality duty did not require accommodation where the disability did not render the applicant vulnerable, nor did it require the review officer to repeat the detailed analysis already undertaken.
6. A review decision should be interpreted benevolently, and the use of a template was not itself evidence of box-ticking. Since irrationality and inadequate reasoning had not been established, the Council’s decision could not be displaced.

• Court of Appeal (Civil Division): allowed the Council’s appeal and held that the review officer’s decision stood: [2014] EWCA Civ 1085.
• Lambeth County Court: Mr Recorder Matthews, on 22 November 2013, quashed the review officer’s decision on procedural and evaluative grounds.