Caselaw: "Reasonable" to remain?

The Court of Appeal for England & Wales has found that a local authority failed to comply with its Public Sector Equality Duty and erred in its decision that an applicant for homelessness assistance was not homeless because it was reasonable to expect her to remain in her home. Victoria Taylor, a recent Queen's University Graduate who is currently undertaking an LLM in Human Rights and Criminal Justice and volunteering with Housing Rights, discusses the case. 

Why is this case relevant?

The case of Lomax v Gosport Borough Council [2018] EWCA Civ 1846 clarifies what is "reasonable" when assessing whether a disabled person can be deemed homeless based on the suitability of the property for their individual needs. The case also clarifies the relationship between housing and the Equality Act 2010, and particularly the Public Sector Equality Duty contained therein. While the Equality Act does not extend to Northern Ireland, Section 75 of the Northern Ireland Act places a duty on the public sector to promote equality of opportunity between people with protected characteristics, one of which is having a disability. 

Background to case

Ms Lomax is a severely disabled and wheelchair bound former RAF airwoman. She is unable to live independently, requires 24 hour care and lives in a rural area in Dorset. Ms Lomax applied to Gosport Borough Council for assistance to move to be nearer to her family in Gosport.

This application was refused by the Borough Council, as they said she failed the test for homelessness. This is because the Council said it was not unreasonable for her to remain in her property, as it was a suitable size, secure and affordable, and it had been adapted to suit her specific physical needs.

Ms Lomax challenged the decision and provided the reviewing officer with evidence that her isolation was having a significant damaging effect on her mental health. Although the reviewing officer acknowledged that Ms Lomax would be much better off if she were less isolated, he did not agree that it would be unreasonable for her to remain the property. The officer based his decision on the fact that Ms Lomax' physical needs were met in the property and that due to an imbalance between supply of and demand for properties in the Gosport area, many other households were accommodated in housing that was similarly unsuitable. This decision was upheld by the County Court.

Court of Appeal considerations

The Court of Appeal, (The Equality and Human Rights Commission intervening), unanimously considered the decision of the lower court to be flawed. It found that the reviewing officer had not complied with their Public Sector Equality Duty to acknowledge that certain applicants ought to be treated more favourably due to disability.

The Court adapted an approach to considering whether accommodation is reasonable to occupy for a disabled person from the Supreme Court in Hotak v Southwark LBC [2015] UKSC 30, and Haque v Hackney [2017]. This requires a sharp focus on

• whether a person is disabled
• the extent of that person's disabilities
• the likely effect of those disabilities for as long as the applicant continues to occupy the property
• the applicant's particular needs in relation to accommodation which arise as a result of disabilities and the extent to which the current accommodation meets those needs
• a comparison between the applicant's accommodation needs and those of people without the applicant's particular disabilities
• a recognition that, in considering whether it is reasonable to continue to occupy the property, an applicant with protected characteristics might need to be treated more favourably. 

The Court emphasised that the PSED could not be "compartmentalised" and applies at all stages of the decision making process, and that performing a comparative exercise between Ms Lomax and other applicants who did not share her particular needs and disabilities carried a risk of duilling this sharp focus. The Court accepted the Equalities and Human Rights commission submission that any consideration of general housing conditions "...must be astute to identify the apporpriate comparators and must take account of the real difference between Ms Lomax' housing needs and the need of others without her particular disabilities" (Para. 45) 

In addition, the Court found that the reviewing officer did not give due regard to the location of the property and that this was a highly relevant consideration in determining if it was reasonable to expect Ms Lomax to remain in her current accommodation. The Court stated that the accommodation could only be found to be suitable if its location was ignored. 

"The reviewing officer appears to me to have overlooked the fact that the location of the property was the cause of her mental disability, namely her depression. In addition, there was overwhelming evidence that to remain in this property in this particular location was actually contributing substantially to a further deterioration in Ms Lomax' mental condition; and that physical support would not be sustainable if she continued to reside there" (Para 53)

Judgment's application to Northern Ireland

Although a decision by the Court of Appeal in England and Wales is not binding on Northern Ireland, it will be persuasive on the NI Court if a similar case arises. This judgment, and particularly the discussions around the appropriate comparator in determining if accommodation is "reasonable", will be of relevance for decisions in Northern Ireland. Article 3 (4) of the Housing (NI) Order 1988, as amended allows the Housing Executive to have regard, when determining whether it would be reasonable for a person to continue to occupy accommodation, to "...the general circumstances prevailing in relation to housing in Northern Ireland". This judgment, taken with the Public Services Equality Duty in the Northern Ireland Act, reinforces the importance of using the appropriate comparator when relying on this provision to conclude that it is reasonable for an applicant to continue to occupy accommodation which they claim is unsuitable.