McMahon v Watford Borough Council

When assessing whether a homeless applicant is vulnerable, a reviewing officer must compare the applicant with an ordinary person if homeless. The assessment is practical, contextual and directed to whether the applicant’s condition would cause significantly greater harm or difficulty in dealing with homelessness.

The public sector equality duty complements that assessment. It does not impose a rigid sequential test or invariably require an express finding of disability. What matters is a sharp and substantive understanding of the applicant’s relevant impairments and their likely effect when homeless. Disability does not itself confer priority need; it must render the applicant vulnerable. A review decision must be read fairly, realistically and as a whole, without over-zealous linguistic analysis.

These conjoined appeals concerned homelessness reviews conducted for Mr McMahon by Watford Borough Council and for Mr Kiefer by Hertsmere Borough Council. Each reviewing officer found that the applicant’s physical and mental conditions did not make him vulnerable and therefore that he lacked priority need under section 189(1)(c) of the Housing Act 1996.

HHJ Bloom and HHJ Rochford respectively accepted that the vulnerability assessments were lawful but quashed the review decisions because the officers had not adequately demonstrated compliance with section 149 of the Equality Act 2010. The councils appealed.

The central question was how the public sector equality duty interacts with a vulnerability assessment and, in particular, whether the officer must make an express finding of disability or follow the four matters identified in Hotak as a sequential test.

1. Both appeals allowed. Each reviewing officer had done everything required by the public sector equality duty in the context of the relevant vulnerability assessment. The county court judges had read the review decisions too narrowly and applied an excessively technical standard.

2. The vulnerability inquiry under section 189(1)(c) of the Housing Act 1996 is comparative, practical and contextual. The applicant must, because of a relevant characteristic, face harm or detriment making a noticeable difference to the ability to deal with homelessness when compared with an ordinary person if homeless. Available support, services, treatment and medication form part of that assessment. Once the applicant is significantly more vulnerable in that sense, no additional requirement of functionality applies.

3. Section 149 of the Equality Act 2010 imposes a duty to have due regard, not a duty to achieve a particular result. In this setting it complements the homelessness inquiry and illuminates any disability relevant to that inquiry. The four matters identified in Hotak do not constitute a rigid or sequential test. A reviewer need not invariably make an express finding whether the applicant is disabled within the statutory definition.

4. Disability and vulnerability remain distinct. Disability is assessed without taking corrective treatment into account, while vulnerability is assessed with available support and treatment taken into account. The relevant question for a homelessness reviewer is the effect of the applicant’s condition on the ability to deal with homelessness. Disability alone does not create automatic priority need; it must cause vulnerability.

5. Substance prevails over form. A reviewer must understand the applicant’s actual mental and physical problems, their extent and their relevant consequences. Failure to mention or tabulate the equality duty will not necessarily invalidate a review, while a formulaic recital will not cure a substantive failure. Reasons must be read benevolently, realistically and as a whole.

6. Both officers had examined the applicants’ conditions individually and cumulatively, their daily activities, available treatment and their ability to cope when homeless. Neither applicant had shown a material impairment of normal day-to-day activities relevant to homelessness. The question of remedy for a breach of the equality duty therefore did not arise and was left undecided.

1. Court of Appeal (Civil Division): Allowed both councils’ appeals in [2020] EWCA Civ 497. The reviewing officers had complied with the public sector equality duty, so their decisions were restored.

2. County Court at Watford: HHJ Bloom allowed Mr McMahon’s appeal and quashed Watford Borough Council’s review decision for failure adequately to demonstrate compliance with the public sector equality duty.

3. County Court at Watford: HHJ Rochford quashed Hertsmere Borough Council’s review decision concerning Mr Kiefer on the same ground, while accepting that its vulnerability assessment was otherwise lawful.