Michelle Biden v Waverley Borough Council
| Jurisdiction | England & Wales |
| Judge | Macur LJ,Asplin LJ,Coulson LJ |
| Judgment Date | 01 April 2022 |
| Neutral Citation | [2022] EWCA Civ 442 |
| Docket Number | Case No: CA-2021-000723 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 442
Lady Justice Macur
Lady Justice Asplin
and
Lord Justice Coulson
Case No: CA-2021-000723
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT GUILDFORD
HER HONOUR JUDGE NISA
G00GU400
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Straker QC and Annabel Heath (instructed by Wills Chandler Solicitors) for the Appellant
Kelvin Rutledge QC and Adrian Peck (instructed by Waverley Borough Council) for the Respondent
Hearing date: 9 March 2022
Approved Judgment
This judgment was handed down remotely at 10.30a.m. on 1 April 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
Introduction
The issue in this appeal is the sufficiency of inquiries made to determine the suitability of accommodation offered to a homeless applicant with ‘protected characteristics’ of disability and gender reassignment.
The statutory framework
Part 7 of the Housing Act 1996 (“HA 96”) prescribes the statutory duties owed by a local housing authority to the homeless. Relevant to this case are the following provisions.
Section 189B of HA 96, requires a local housing authority to take reasonable steps to secure that suitable accommodation becomes available for occupation by an eligible, unintentionally homeless applicant, who is not referred to another housing authority pursuant to section 198(A1), for at least (a) 6 months, or (b) such longer period not exceeding 12 months as may be prescribed.
A local housing authority may not approve a final accommodation offer, unless it is satisfied the accommodation is suitable for the applicant and that section 193A (7) of HA 96 does not apply. Subsection (7) does not apply in this case.
Section 182 of HA 96 requires a local housing authority to have regard to such guidance as may from time to time be given by the Secretary of State. That guidance is contained within the “Homelessness Code of Guidance for Local Authorities” 2018 (“the Code”).
Chapter 17 of the Code (in its 2018 edition) provides amongst other things that:
“17.4 … consideration of whether accommodation is suitable will require an assessment of all aspects of the accommodation in the light of the relevant needs, requirements and circumstances of the homeless person and their household. The location of the accommodation will always be a relevant factor.
17.6 Account will need to be taken of any social considerations relating to the applicant and their household that might affect the suitability of accommodation, including any risk of violence, racial or other harassment in a particular locality. […]
17.50 … where possible, housing authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. […]
17.54 Account should also be taken of medical facilities and other support currently provided for the applicant and their household. Housing authorities should consider the potential impact on the health and wellbeing of an applicant, or any person reasonably expected to reside with them, were such support to be removed or medical facilities were no longer accessible. They should also consider whether similar facilities are accessible and available near the accommodation being offered and whether there would be any specific difficulties in the applicant or person residing with them using those essential facilities, compared to the support they are currently receiving.
The Code accords with Article 2 of the Homelessness (Suitability of Accommodation) (England) Order 2012/2601 (“the Regulation”), in specifying matters to be considered in determining whether accommodation is suitable for a person are to include:
“[T]he proximity and accessibility of the accommodation to medical facilities and other support which (i) are currently used by or provided to the person or members of the person's household; and (ii) are essential to the well-being of the person or members of the person's household; and the proximity and accessibility of the accommodation to local services, amenities, and transport.”
Section 208(1) of HA 96 imposes upon the local housing authority a duty to ensure, so far as reasonably practicable, that the accommodation they secure for the applicant is within their own district.
A local housing authority's relief from homelessness duty can be ended under section 193A if the applicant, having been informed of the consequences of refusal and of their right to request a review of the suitability of the accommodation, refuses a final accommodation offer.
Under section 202(1) of HA 96 an applicant has the right to request a review of, amongst other things, the decisions as to the suitability of accommodation offered to the applicant by way of a final accommodation offer and the ‘discharge’ of a local housing authority's homelessness duties. If dissatisfied with the decision on the review, an applicant may appeal to the county court on any point of law arising from the decision pursuant to section 204 of HA 96.
A local housing authority must also comply with the public sector equality duty (“PSED”) as laid down by section 149 of the Equality Act 2010 (“ EA 10”) with the aim to: (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; and, (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it (Section 149(3)). Compliance with these duties may involve treating some persons more favourably than others; section 149(6).
Section 149(7) identifies the ‘protected characteristics’ include disability and gender reassignment.
The background
Mrs Biden presently occupies a property in Farnham under an assured shorthold tenancy agreement. She has family and a “wider support network” in the Wokingham area where she once lived. She moved to her present address fearing the adverse attentions of her wife's family who lived in and around Wokingham.
Mrs Biden was given notice to quit pursuant to s21 of the Housing Act 1988 in 2019. She presented as homeless to Waverley Borough Council (“WBC”) on 28 August 2019.
On 20 November 2019, WBC concluded Mrs Biden was homeless and eligible for assistance and confirmed that it owed her a duty under s189B of HA 96.
Mrs Biden has the protected characteristics of gender reassignment, she is a trans woman, and is disabled, namely she suffers with osteoarthritis to the right knee, depression, and anxiety.
On 10 January 2020, the authority made a ‘final offer of accommodation’ to Mrs Biden of a ground floor self-contained flat in a purpose-built low-rise block let by an independent housing association managing a “range of affordable quality … flats to rent … to general needs applicants…”. The flat was situated approximately 0.9 miles away from her present accommodation.
Initially, Mrs Biden accepted the offer subject to a review of its suitability. In a letter dated 15 January 2020, Mrs Biden's solicitors referred to her disability and that she was awaiting a knee replacement and was extremely limited in her mobility. She was dependent on public transport which she said was not easily accessible from the proposed address; her support network was in Wokingham, as was her GP's practice. She would be left “isolated and unable to carry out basic daily tasks.”
On 29 January 2020 Mrs Biden refused the offer of accommodation as unsuitable, nevertheless requesting the review to proceed. Consequently, on 30 January 2020, WBC wrote to her pursuant to section 193A discharging its duty under section 189B of HA 96. Mrs Biden requested a review of that decision also.
Mrs Biden's solicitors made further representations in a letter dated 20 May 2020, this time referring specifically to her gender reassignment and the fact that Mrs Biden had “been the victim of many incidents which have left her frightened and concerned to be in remote unfamiliar areas.” It was said to be clear that the property offered was not suitable for her physical and mental health needs and “her protected characteristic under the equality act [sic] has clearly not been considered.”
The Review Decision
The review of both decisions was conducted by Ms Donaldson, a housing options manager for WBC. Ms Donaldson interviewed Mrs Biden on 1 June 2020 and had regard to her solicitor's representations referred to in paragraphs 18 and 20 above. Of relevance to the submissions in this appeal, Ms Donaldson made inquiries of a police support community officer (“PCSO”) and a GP's practice local to the designated address, regarding transgender issues raised by Mrs Biden. Ms Donaldson also had access to several medical reports. Her comprehensive review is dated 18 August 2020 and is recapitulated in some detail here considering the nature of the appeal.
After detailing physical and mental health issues, Ms Donaldson noted in section A, part 3 of her review that Mrs Biden was “a transwoman and [has] gender dysphoria … a term that describes a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity. The sense of unease … can lead to depression and anxiety and have a harmful impact on daily life… you suffer from depression and anxiety.” She noted Mrs Biden's progress on the sex reassignment surgery pathway since 2008 and that “[y]ou say you feel anxious and concerned to be in unfamiliar or remote areas due to incidents you have previously experienced. Trans-people tend to feel anxious when out in the community due to concern about being victimised by wider society because they are a trans-person.”
In section B,...
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