McMahon v Watford Borough Council

This appeal considered the interaction between the statutory test of vulnerability under section 189(1)(c) of the Housing Act 1996 and the public sector equality duty (PSED) in section 149 of the Equality Act 2010. The Court reiterated that the Hotak test is a comparative, practical and contextual exercise: the reviewer must decide whether the applicant would be significantly more vulnerable than an ordinary person if made homeless.

The Court held that the PSED is complementary to, and informs, the assessment of vulnerability but does not override the statutory test. A reviewing officer need not use a rigid sequential four-stage formula or expressly state that an applicant is a "disabled person" under the Equality Act so long as the decision, read as a whole, shows that the officer has had due regard to the relevant matters and has focused on the effect of the applicant’s conditions on their ability to deal with homelessness.

Applying these principles, the Court concluded that the reviewing officers in both cases had, in substance, considered the applicants' medical conditions, assessed their effect on day-to-day activities and on the ability to cope with homelessness, and had complied with the PSED. The county court decisions quashing those reviews were therefore set aside and the appeals were allowed. The Court did not decide the appropriate remedy where a PSED breach is established because no breach was found on these facts.

Background and parties: Two appeals were heard together. In McMahon v Watford Borough Council the applicant Stephen McMahon applied for homelessness assistance in October 2014; a review officer (Mr Perdios) upheld a decision that he was not in priority need. The county court (HHJ Bloom) quashed the review on the ground that the PSED had not been properly discharged. In Kiefer v Hertsmere Borough Council (joined for hearing) Mr Kiefer applied in December 2016; a review officer (Ms Kaissi) concluded he was not in priority need; the county court (HHJ Rochford) held the PSED had not been demonstrated and quashed the decision.

Procedural posture: Both cases were appeals to the Court of Appeal from decisions of the County Court at Watford. The Court awaited and considered the contemporaneous decision in Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445 before handing down judgment.

Nature of the claims/application: Both appeals concerned whether the reviewing officers had lawfully determined that the applicants were not in priority need because they were not “vulnerable” within section 189(1)(c) of the Housing Act 1996 and whether the PSED (section 149 Equality Act 2010) had been properly applied in the review process.

Issues framed by the court: (i) The correct approach to the statutory test of vulnerability (Hotak principles); (ii) the relationship and interaction between that test and the PSED; (iii) whether a reviewer must expressly identify that an applicant is a "disabled person" under the Equality Act before concluding they are not in priority need; and (iv) the appropriate remedy if the PSED has been breached.

Court’s reasoning and conclusions: The Court reviewed authority including Hotak, Kanu, Haque and related decisions. It stressed that vulnerability is a comparative, practical and contextual evaluation of how homelessness would affect the applicant compared with an ordinary homeless person. The PSED is complementary: reviewers must have due regard to protected characteristics (notably disability) and how effects of those characteristics, together with available support and treatment, affect a person’s ability to cope with homelessness.

• The Court rejected a strict requirement that reviewers perform a rigid four-stage sequence or expressly declare whether the person is disabled for the purposes of the Equality Act. What matters is substance: whether the reviewer has had due regard to the relevant matters and focused on how conditions affect coping with homelessness.
• Applying a benevolent, realistic reading of the review letters, the Court found Mr Perdios had considered the applicants’ physical and mental conditions, noted their capabilities in day-to-day activities and expressly stated that he had the PSED in mind; his conclusions showed he considered whether the conditions caused vulnerability. Likewise Ms Kaissi expressly considered the effect of Mr Kiefer’s conditions on daily activities and concluded they did not render him vulnerable.
• Because there was no evidence that the conditions materially impaired the applicants’ ability to carry out normal day-to-day activities or cope with homelessness, and because the reviews showed focused consideration of those issues, the Court concluded there had been no breach of the PSED in either case.

The Court therefore allowed both appeals and did not consider remedies for PSED breaches, since none were found on these facts.

Appeal allowed. The Court held that the reviewers had, in substance, complied with the public sector equality duty while applying the Hotak vulnerability test under section 189(1)(c) of the Housing Act 1996. A reviewing officer is not required to adopt a rigid sequential formula or to state in terms that an applicant is "disabled" under the Equality Act so long as the decision, read fairly and practically, demonstrates due regard to the protected characteristics and the effect of the applicant's conditions on their ability to cope with homelessness. On the facts, no breach of the PSED was shown and the county court decisions quashing the reviews were set aside.

Appeals from the County Court at Watford (Her Honour Judge Bloom in B02WD117; His Honour Judge Rochford in F00WD831). The Court of Appeal heard the appeals together and allowed both on 8 April 2020 ([2020] EWCA Civ 497). The court awaited and considered the contemporaneous Court of Appeal decision in Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445 before judgment.