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Judgment handed down in Hertsmere Borough Council v. Kiefer, Watford Borough Council v. McMahon [2020] EWCA Civ the Court of Appeal

In Hertsmere Borough Council v. Kiefer, Watford Borough Council v. McMahon [2020] EWCA Civ the Court of Appeal held that, contrary to the decisions of the county court judges who heard these homelessness appeals, there was no breach of the public sector equality duty ("PSED") in either review decision, and therefore the Court did not have to go on and consider whether the test for granting relief in such appeals was "inevitability" of the "highly likely" test . 


The respondents had applied to the local housing authorities for homelessness assistance and, in both cases, the authorities had decided on review that they were not vulnerable and therefore not in priority need.


The respondents appealed to the county court. Both respondents were successful in those appeals. The Circuit Judges who heard the appeals held that the authorities had breached the PSED. The authorities appealed, and the two cases were heard together. 


The Court allowed both appeals. Lewison LJ, giving the leading judgment, held that the purpose of Lord Neuberger's judgment in Hotak v. Southwark LBC [2016] AC 811 was to provide a practical test that did not force review officers into a straitjacket. He held that Lord Neuberger's four stage test in Hotak at [78], was not sequential, and the reviewer did not have to address each question in turn before moving to the next. The test did not have to be applied in all PSED cases. It would be highly artificial if, in order to answer the first three questions, the reviewer had to ignore any support or medication, but then take that into account when assessing vulnerability. That would not be a practical test. 


It is no doubt right that when considering disability in the abstract it is necessary to concentrate on what a person could not do, rather than on what they could do, and this included an impairment in carrying out daily tasks at work and at home. However, in the context of vulnerability, a reviewer does not have to make a finding as to whether or not an applicant has a disability or the precise effect of the PSED. The greater the overlap between the particular statutory duty under consideration and the PSED, the more likely it is that in performing the statutory duty, the authority will have also complied with the PSED, even if it is not expressly mentioned.


In the case of a vulnerability assessment, there is substantial overlap with the PSED. Provided that a reviewer appreciates the actual mental or physical problems from which the applicant suffers, the task will have been properly performed. The task is not to label but to understand. 


It was said that one of the striking features of both appeals was that there was no evidence that any of the various medical conditions of the respondents had any real effect on their ability to carry out daily activities. This showed that there was a real danger of the PSED being used as a peg on which to hang a highly technical argument that an otherwise unimpeachable vulnerability assessment should be quashed. The PSED is not there to set technical traps for conscientious attempts by hard pressed review officers to cover every conceivable issue, nor is it a disciplinary measure.   


Mr Toby Vanhegan and Mr Matthew Lee appeared for the respondents in the Court of Appeal and were instructed by Lucy Fox and Imran Sarfraz of Arkrights Solicitors.

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