Lomax v Gosport BC

The Court of Appeal considered whether the respondent correctly applied sections 175 and 177 of the Housing Act 1996 in concluding it was reasonable for a severely disabled applicant to continue to occupy her adapted bungalow. The court held that the reviewing officer failed properly to apply the public sector equality duty (Equality Act 2010, s.149) because he carried out an undifferentiated comparison between the appellant and the general housing register rather than a focused, proportionate comparison which took full account of the severity and consequences of the appellant's disabilities.

The reviewing officer gave significant weight to the physical suitability of the property and the general shortage of accommodation in Gosport (s.177(2)) but did not recognise that the location of the property was itself causative of, and materially exacerbating, the appellant's mental disability. The court held that the officer should have asked whether the appellant's circumstances were out of the ordinary and should have undertaken the sharp, disability-focused assessment required by Hotak and Haque. For these reasons the appeal was allowed.

Background and parties: The appellant, a severely disabled former serviceperson who is wheelchair bound and largely housebound, occupied a physically adapted two-bedroom bungalow in a rural Dorset location. She applied to Gosport Borough Council for assistance as homeless on the basis that it was not reasonable for her to continue to occupy that accommodation because its isolated location caused severe social isolation and deterioration in her mental health. The council refused; a review upheld that decision; the county court (HHJ Sullivan QC) dismissed the appellant's appeal. The appellant appealed to the Court of Appeal.

Nature of the claim / relief sought: A homelessness application and challenge to the review decision seeking a finding that it would not be reasonable for the appellant to continue to occupy her current accommodation and so that she should be regarded as homeless and owed assistance.

Issues framed by the court:

• Was it reasonable for the appellant to continue to occupy her current accommodation within the meaning of s.175(3) Housing Act 1996?
• What weight could be given to the general housing circumstances in the district under s.177(2) Housing Act 1996?
• Whether the public sector equality duty (Equality Act 2010 s.149) required a sharper, disability-focused comparative assessment and whether the council's approach amounted to indirect discrimination.

Facts and evidence: The reviewing officer accepted the medical and social evidence that the appellant was disabled and that her mental health was deteriorating due to isolation; medical practitioners and social services advised that a move to Gosport, to be near family able to provide sustainable care, would be beneficial. The bungalow was physically adapted and provided strong security of tenure and affordable rent, but was remote with no accessible transport.

Court's reasoning and conclusion: The Court of Appeal emphasised the need for a "sharp focus" on the applicant's disability, its effects and particular needs (drawing on Hotak and Haque). It held that the reviewing officer erred by (i) treating the appellant as broadly comparable with the generality of households on the council's waiting list without analysing the relative severity of disabilities and the different needs of the appellant; (ii) over-weighting the general scarcity of accommodation under s.177(2) without appropriately differentiating comparators; and (iii) failing to recognise and address that the property's location was a cause of her mental impairment and that remaining there would materially worsen her condition. Those errors meant the PSED had not been properly discharged and the review decision was unsound. The appeal was allowed.

Appeal allowed. The Court concluded the reviewing officer had failed to apply the public sector equality duty with the required sharp focus when comparing the appellant's needs with others and had given inappropriate weight to general housing scarcity and the bungalow's physical suitability while overlooking that its location was causative of and exacerbating the appellant's mental disability. The review decision was therefore flawed and the appeal was allowed.

Appeal from the County Court at Portsmouth (Portsmouth Combined Court Centre, HHJ Sullivan QC). The county court had dismissed the appellant's challenge to the council's review decision. The matter was then heard in the Court of Appeal, which allowed the appeal ([2018] EWCA Civ 1846).