R (on the application of Barrett) v Westminster City Council (2015)
Keywords: Housing, Homelessness, Evidence, Decision making, PSED
A 58 year old single woman receiving disability living allowance for various conditions including anorexia and anxiety, applied to Westminster City Council for homelessness assistance. She had been homeless for two years, living on the streets, using night buses or hostels. The initial decision concluded that she did not meet the criteria under the Housing Act 1996 for priority need on the grounds of being ‘vulnerable’. An initial judicial review quashed that decision. The council reviewed their decision and again declined her application, asserting that her health needs could be met through the use of toilet and laundry facilities at day centres.
The appeal again overturned the decision. The council had not properly considered additional medical evidence supplied by the claimant and had not adequately fulfilled the requirements to take into account relevant information set out in R v Camden LBC exp. Mohammed (1997) 30 HLR 315. These were that in exercising its discretion, a public body must always consider: (a) the merits of the substantive case, (b) whether there was new material on review that could affect the decision, (c) the personal circumstances of the applicant.
The reviewing officer’s decision had claimed to have taken account of Hotak v Southwark LBC and considered the Equality Act 2010 s149 Public Sector Equality Duty (PSED).
However it was held that the reviewing officer had failed adequately to consider the particular circumstances of the applicant (as required by the judgement in Hotak). For example, whilst the reviewing officer would have known about day centres in the local area, there had been no consideration of the availability or suitability of the toilet or laundry facilities for an individual with the appellant’s specific needs. Therefore, the reviewing officer’s reasoning was insufficient to establish that these would mitigate the woman’s needs sufficiently to render her no longer ‘vulnerable’.
It was also held that there were significant errors of law in the council’s approach to the PSED. The council had failed to make a decision as to whether or not the council accepted that the woman was ‘disabled’ (and thus had that protected characteristic). As a result the council was not in a position to identify the steps that might be required to meet her needs, nor to consider cumulatively multiple protected characteristics (in this case disability and gender).
ANALYSIS: This case sets out a stark warning for local authorities on the importance of properly considering evidence when exercising their discretion. It is vital that decision makers are legally literate and clearly understand the statutory duties which underpin their discretion.
It is legitimate to disbelieve someone or to decide that things are not as bad as they claim. However, it is vital to clearly make and state such a decision, set out the evidence and rationale for the decision and give the individual the opportunity to respond with further evidence or explanations. It is legally dangerous to conclude that someone is not owed a duty because you basically disbelieve them without clearly stating that; articulating reasons and giving them an opportunity to convince you.
It is also legitimate to decide that an individual’s needs can be met by something other than the council exercising its discretion. But it is essential that the actual availability of the alternative and the suitability of it to meet the individual’s specific needs are properly considered. It is not enough merely to signpost everyone vaguely to universal services without actively considering whether those services would really meet the individual’s particular needs appropriately. Those councils currently heavily engaged in “signposting” during Care Act Care Planning to minimise the needs they themselves have to meet, would do well to take note.