Hackney LBC v Haque

This appeal concerned the interaction between the Public Sector Equality Duty (PSED) under Equality Act 2010 s.149 and a housing authority's duty under Part VII of the Housing Act 1996 to provide suitable accommodation (in particular ss.193, 202 and 203). The Court of Appeal reviewed whether the reviewing officer's decision on a suitability review had demonstrated substantive compliance with the PSED or whether the judge below was right to quash it for failure to show a transparent PSED analysis. The court held that the PSED requires a sharp focus upon (i) whether the applicant is disabled; (ii) the relevant aspects of the disability; (iii) the likely effects of those aspects when homeless; (iv) the particular needs arising from the disability and whether the accommodation meets those needs; and (v) whether more favourable treatment is required. However, a reviewing officer need not invariably set out an express, formulaic recital of s.149: what matters is substantive, rigorous, open-minded consideration of the equality issues. Applying that test to the facts, the Court concluded the reviewing officer had in substance had due regard to the PSED and reinstated the decision that the room was suitable.

Background and parties: The appellant local authority, the London Borough of Hackney, appealed against an order of HH Judge Luba QC quashing a reviewing officer's decision (the Decision) that accommodation provided to the respondent, Mr Haque, was suitable. Mr Haque suffered chronic neck and back pain with secondary depression and was found to be in priority need under HA s.189(1)(c). He sought a review under HA s.202 challenging the suitability of a single third-floor hostel room (Room 315).

Nature of the claim / relief sought: The respondent sought a review of suitability under HA s.202. The County Court quashed the Decision on the ground that the reviewing officer had failed to demonstrate compliance with the PSED.

Procedural posture: Appeal from the Central London County Court (HH Judge Luba QC). The Court of Appeal (Briggs LJ, Beatson LJ and McCombe LJ) heard the appeal.

Issues framed by the court:

• Whether the reviewing officer had complied, in substance, with the PSED in reaching his decision on suitability.
• What form or content of reasoning is required for a suitability review to demonstrate due regard to the PSED.
• How the Supreme Court's decision in Hotak (and related authorities) bear upon suitability reviews under the Housing Act.

Court's reasoning and outcome: The court analysed authorities on the PSED and the Housing Act (including Hotak) and identified a tailored six-part focus that a decision-maker should apply when the PSED is engaged in a suitability review: recognition of disability, identification of relevant aspects of impairment, assessment of likely effects when homeless, assessment of particular accommodation needs and whether the accommodation meets them, consideration of whether more favourable treatment is required, and an overall review that pays due regard to these points. The court emphasised substance over form: a decision-maker need not always recite s.149 verbatim but must demonstrate a conscientious, rigorous and open-minded focus on equality issues. Applying that stand-back test to the Decision, the court found the reviewing officer had sufficiently identified the disabilities, the consequences relied upon, had obtained medical advice and addressed whether the room met the applicant's particular needs. The Court of Appeal therefore allowed the appeal and reinstated the Decision that the accommodation was suitable.

Practical note: The court cautioned against imposing an inflexible requirement that reviewing officers always set out a formal, step-by-step PSED narrative; nevertheless, some particularity in reasons is helpful to avoid litigation and to demonstrate transparent engagement with the PSED.

Appeal allowed. The Court of Appeal held that the judge below erred in imposing an inflexible requirement that a reviewing officer in almost all cases must set out an express, formulaic PSED analysis. The PSED requires a focused, rigorous and open-minded assessment of disability, the relevant aspects of impairment, their likely effects, the particular needs arising from the impairment and whether the accommodation meets those needs, but compliance is a matter of substance rather than form. On a stand-back reading the reviewing officer's Decision showed substantive compliance and should be reinstated.

Appeal from the Central London County Court (order of HH Judge Luba QC quashing the reviewing officer's decision dated 29 September 2015). The appeal was heard in the Court of Appeal, giving neutral citation [2017] EWCA Civ 4.