1 Aug 2018

The Court of Appeal today unanimously allowed an appeal in Lomax v Gosport Borough Council [2018] EWCA quashing a local authority’s decision that it was reasonable for a severely disabled applicant to continue to occupy her accomodation on the basis that the general housing circumstances prevailing in the area were such that others in the area were also living in circumstances which were ‘not ideal’.

Ms Lomax was represented by One Pump Court’s Martin Hodgson instructed by Diane Sechi of South West London Law Centre. Eleri Grifiths, who shadowed and assisted Martin on the case during her first six of pupillage, summarises the decision.

It is well-established in homelessness decision making that under section 175(3) Housing Act 1996 (as amended), a person is homeless even if they have physical accommodation when the accommodation they have is not reasonable to continue to occupy. In deciding that question, an authority is entitled to consider the general circumstances prevailing in the area to which an applicant has applied (177(2)). Equally where an applicant has a disability, the Equality Act 2010 imposes additional duties on local authority decision-makers. Ms Lomax’s case concerned situations where those decisions and duties meet.

Ms Lomax is a severely disabled and wheelchair bound former RAF airwoman. She is unable to live independently, requires 24 care and lives in a rural area in Dorset 70 miles from her family in Gosport. Essentially, she is housebound, extremely isolated and unable to alleviate herself from her increasingly deteriorating physical and mental health conditions. Her present care provision is unsustainable and her needs were not capable of being met in her current accommomdation. All the unchallenged medical evidence pointed to move to Gosport as essential.

Ms Lomax applied to Gosport Borough Council for assistance under Part VII Housing Act 1996 (as amended), to be near her family who could provide her with the necessary support. Notwithstanding that her existing property is physically adapted for her, it was no longer reasonable for her to continue to occupy it taking account her health. Accordingly, she was homeless within the meaning of the Act.

Despite the overwhelming medical evidence, which was all accepted including Ms Lomax’s disability, Gosport refused her application and upheld the refusal on review. Having applied Section 177(2) the Act, the reviewing officer considered that it was reasonable for Ms Gosport to continue to occupy her current accommodation having regard to the general housing circumstances prevailing in the Gosport area. Broadly, it was said that demand outweighs supply and a number of people who live in the Gosport area live in accommodation that is “not ideal for them”.

Ms Lomax appealed the decision to the County Court. The primary complaint concerned the council’s failure to compare like for like when considering Ms Lomax’s position against others in the area with medical and social needs. Neither the severity of Ms Lomax’s conditions , consequences of remaining where she is, or her inability to alleviate herself had been properly considered when applying s.177(2).

The Appeal was dismissed by HHJ Sullivan QC, who found no error of law in the decision. Significantly, the Judge drew an artificial distinction between “disability” and “illness” for the purposes of the Equality Act and referred to Ms’ Lomax as having a “social desire” to move, rather than a mental health disability, contradicting all the medical evidinece. The parties, Equality and Human Rights Commission (intervening) and the Court of Appeal, all agreed that approach was wrong.

The Court of Appeal (The Equality and Human Rights Commission intervening) unanimously considered the decision to be flawed. In doing so, it found that:

The public sector equality duty applies at all stages of the decision making process, and is not a matter which can be compartmentalised (i.e. considered at the end of a decision letter without permeating the entire decision making process).
Any consideration of the general housing conditions (which is of course a discretion) must identify appropriate comparators and take account of the needs of the particular applicant and the needs of others without such disabilities in order to have the sharp focus needed to properly comply with the PSED.

The reviewing officer had failed to comply with the PSED which requires that a disabled person may be treated more favourably than a person who is not disabled.

The mere acknowledgment of Ms Lomax’s health concerns were not enough.
In this case, the reviewing officer had failed to account for the impact which the location of the property was having on Ms Lomax, regardless of its physical adaptation, and that it was in fact positively causing a deterioration in Ms Lomax’s health. She was not therefore simply in the “same unfortunate boat” as everyone else.

The relationship between the housing duties and Equality Act 2010 is complex and the Judgment will be useful for applicants and decision makers alike as giving further guidance from the senior Court’s on the interaction between the two legislative schemes. The Court approved a structured approach to considering whether accommodation is reasonable to occupy for a disabled person, following a similar albeit adapted approach to the Supreme Court in Hotak v Southwark LBC [2015] UKSC 30, and Haque v Hackney [2017]. This requires a sharp focus on (i) the fact, (2) extent and (3) likely effect of disabilities for as long as the applicant continues to occupy the property , (4) the accommodation needs arising from those disabilities and the extent to which current accom,odation meets those needs, (5) a comparison between those needs and the needs of others without the disabilities and finally (6) a recognition that a disabled applicant might need to be treated more favourably than others without the disability. This decision-maker had failed to apply that approach.

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