Iris Ferber discusses the recent Court of Appeal decision in McMahon v Watford BC [2020] EWCA CIV 497: Vulnerability and the Public Sector Equality Duty

How are homelessness cases like London buses? You know this one… You wait for ages, and then two come along at once.

Following Mathew McDermott’s report earlier this week on James v Hertsmere BC and “contracting out” review decisions (see link here), McMahon v Watford BC; Kiefer v Hertsmere BC is a second Court of Appeal decision on a point of widespread importance to homelessness professionals: the interaction between vulnerability reviews and the PSED.

What is the case about?

In two conjoined cases, both dealing with priority need based on vulnerability (under s.189(1)(c) of the Housing Act 1996), the local authority’s review officers had given detailed and case-specific reasons why the applicant was not vulnerable.

In each case, the judge at first instance had not interfered with that reasoning, but had nevertheless held that the review letter demonstrated insufficient compliance with the PSED, and that it was unlawful on that basis alone. Both local authorities appealed to the Court of Appeal.

What did the Court decide?

The Court of Appeal held that the judges below were wrong in both cases: Mr McMahon’s review decision, and Mr Kiefer’s review decision, both complied with the PSED.

The discussion and decision in the judgment of Lewison LJ is a model of clarity and clear analysis; it is packed with authoritative statements that will undoubtedly be repeated in many cases, for years to come.

Here are my top 3 highlights:

1. On the 4-stage test in paragraph 78 of Hotak:

“It would be extraordinary if, having dismissed the debate about whether the assessment of vulnerability was a two-stage or a one-stage test as “arid”, Lord Neuberger intended to lay down a rigid four stage test which had to be applied in all cases engaging the PSED. That would… force reviewing officers into a straitjacket.” (paragraph 53)

2. On the overlap between the assessment of vulnerability and the PSED:

“In the case of a vulnerability assessment, there is substantial overlap… [with] the PSED… What the reviewing officer must consider is whether a person is vulnerable as a result of “mental illness or handicap or physical disability”. It is difficult to see how that task can be performed without a sharp focus on the extent of the illness, handicap or physical disability; and its effect on the person’s ability to deal with the consequences of homelessness. What matters is the substance of the assessment not its form. Provided that a reviewing officer appreciates the actual mental or physical problems from which the applicant suffers, the task will have been properly performed.” (paragraph 68)

3. On the relevance of the review officer failing to decide whether an applicant is disabled:

“Suppose that, having considered all the facts, a reviewing officer decides that a homeless person is not vulnerable… He goes on to consider whether that person is disabled… and decides that he is. I cannot see how it can realistically be suggested that, having decided that a person is not vulnerable, the fact that he is disabled gives him automatic priority. Some categories of person are entitled to automatic priority… But the disabled are not. They are only entitled to priority if the disability causes them to be vulnerable… Now suppose that a reviewing officer decides that a homeless person is vulnerable… The full housing duty is therefore triggered. What difference can it make to the triggering of that duty, if, in addition, the reviewing officer decides that that person is also disabled? The same duty will have been triggered.” (paragraph 73)

Comment

It is no surprise that a review decision on vulnerability will be unlawful if it fails to engage with the specifics of an applicant’s situation, and simply recites the PSED without analysis of the facts of the case.

The take-away from McMahon, though, is that a failure to expressly refer to the PSED, a failure to refer to the Hotak 4-stage test, and even a failure to decide whether an applicant is disabled, will not (of themselves) be fruitful grounds of appeal.

The key to lawful vulnerability decisions is a full and proper engagement with the physical, mental, social and other problems alleged to be suffered by the applicant; and an analysis of whether those problems significantly affect their ability to deal with being homeless, compared to the ordinary person faced with homelessness. The PSED is complementary to that analysis, but no more than that.

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