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Social Housing Speed Read – Kannan v Newham LBC

Facts

The claimant in this case, Mr Kannan, was homeless and suffered from a medical condition which had required extensive reconstructive surgery and which seriously affected his mobility, meaning he was considered disabled for the purposes of the Equality Act 2010 (the Equality Act).

Mr Kannan applied to his local authority, the London Borough of Newham (Newham), for assistance with homelessness. Newham accepted that it owed Mr Kannan the full housing duty under section 193 of the Housing Act 1996 (the Housing Act), as he was unintentionally homeless and in priority need. Under s206 of the Housing Act, Newham could only discharge this duty by providing him with “suitable accommodation”.

Newham provided Mr Kannan with temporary accommodation in a first-floor flat which was only accessible via an external metal staircase of 14 steps and had a bathtub instead of a shower. He complained that the accommodation was unsuitable as he had difficulty using the staircase and the bath. Following his complaint, Newham carried out a medical assessment, in which the medical adviser concluded that Mr Kannan needed a property which was either on the ground floor or was accessible via lift, and which had accessible bathing facilities.

Despite this, Newham decided that the accommodation was suitable. Mr Kannan requested a review of his accommodation, and Newham again carried out a medical assessment which considered that temporary accommodation was not medically acceptable for Mr Kannan, while accepting that the issue of tenure was not a medical one. Newham again concluded that the accommodation was suitable. A further review was undertaken and Newham prepared a report in which it acknowledged that accessing the property by the stairs caused Mr Kannan “severe pain”, but later in the report described Mr Kannan’s use of the stairs as “uncomfortable and inconvenient”, before again concluding that the temporary accommodation was suitable for his needs.

Mr Kannan appealed Newham’s latest review to the County Court, which upheld Newham’s decision as to the accommodation’s suitability. Mr Kannan appealed to the Court of Appeal.

The Court of Appeal’s Decision

The Court allowed the appeal, on issues regarding the suitability of the accommodation, Newham’s review decision, and the public sector equality duty.

1. Suitability of accommodation

The statutory guidance at the time of Newham’s decisions included that careful consideration should be given when assessing the suitability of accommodation to those with particular needs, especially where the household included a member with a disability. Local authorities had to consider the length of time a tenant would be staying in the temporary accommodation, as a flat which was considered suitable in the short term may not be suitable in the longer term. The reviewing officer was however permitted to take practical considerations, such as availability of housing stock, into account when deciding whether accommodation was suitable.

2. Newham’s review

It was clear that the officer who conducted the review of the suitability of the accommodation had not carried out an adequate review. Newham’s medical assessment had been that the property was not suitable for Mr Kannan on medical grounds due to his disability, but the homelessness officer appeared to ignore this, downgrading Mr Kennan’s pain from “severe” to “uncomfortable and inconvenient” without explanation, as well as ignoring the need for accessible bathing facilities without justification.

3. Public sector equality duty

Under s149 of the Equality Act all public bodies and bodies which exercise public functions are required to have due regard to the needs to eliminate unlawful discrimination against those with protected characteristics, of which disability is one. As a result the reviewing officer was required to focus very sharply on whether Mr Kannan suffered from a disability and if so whether this affected the suitability of his temporary accommodation. In Newham’s report, the officer referred to many other people in the borough who were living in accommodation which was not ideal for their needs, but the court held that this was not an adequate reason to conclude that Mr Kannan’s accommodation was not ideal but still suitable. Mr Kannan’s disability meant that his needs required additional consideration over and above that given to those without a disability.

Comment

This case reminds public bodies/those exercising public functions once again  that close attention should be paid when considering the suitability of accommodation for those with protected characteristics and with other special needs to avoid breaching the Equality Act public sector duty.

While housing providers can take practical considerations into account when making such decisions, they must ensure that there is a sharp focus on an applicant’s disability and their particular circumstances which may affect whether accommodation is suitable for them, as well as the consequences of them remaining in the accommodation over a period of time.

The Court of Appeal’s decision also helps housing providers by setting out the factors that should be taken into account in such circumstances.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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