R XC v London Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 06 April 2017 |
| Neutral Citation | [2017] EWHC 736 (Admin) |
| Docket Number | Case No: CO/3981/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 April 2017 |
[2017] EWHC 736 (Admin)
Mr Justice Garnham
Case No: CO/3981/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Eleanor Sanders (instructed by Southwark Law Centre) for the Claimant
Christopher Baker (instructed by London Borough Southwark) for the Defendant
Hearing dates: 8 th March & 9 th March 2017
Approved Judgment
Introduction
By these judicial review proceedings, the Claimant, who is to be known by the initials "XC", challenges the way in which the housing allocation scheme operated by Southwark London Borough Council was applied to her. The claim turns on the effect of the Equality Act 2010 on a scheme designed in accordance with Part VI of the Housing Act 1996.
The scheme, known as the "London Borough of Southwark Choice Based Lettings and Housing Allocation Scheme" is the Authority's response to the requirement on local authorities under section 166A and Part VI of the Housing Act 1996, as amended by the Homelessness Act 2002 and the Localism Act 2011, to adopt a scheme to determine the allocation of its dwellings, giving reasonable preference to certain categories of people. Amongst other classes of people, the scheme gives additional preference to those with urgent housing needs, in accordance with section 166A of the 1996 Act, and to armed service personnel under regulations introduced in 2012.
The Claimant is a single, disabled woman who lives in accommodation she rents from the Authority in London SE15 ("the Flat"). She is unable, she says, to carry out paid employment or voluntary work because of her disability and because she has certain caring responsibilities for her adult son who lives elsewhere in Southwark. It is her case that the scheme unlawfully discriminates against her.
On the 6 September 2016 Kerr J gave the Claimant permission to apply for judicial review limited to the following grounds:
"(1) whether the defendant in breach of the Equality Act 2010 treated the claimant unfavourably as a result of something arising from her disability in the way in which it addressed her request to move, and by declining to move her out of Band 4;"
(2) whether in breach of the 2010 Act the defendant, by operating the "priority star" element of the allocation policy, indirectly discriminated against disabled persons, including the claimant, who cannot work or volunteer by reason of disability;
(3) whether in breach of the 2010 Act the defendant, by operating the "priority star" element of the allocation policy, indirectly discriminated against women, including the claimant, who cannot work or volunteer by reason of caring responsibilities undertaken by substantially more women than men."
The Claimant's Counsel, Ms Eleanor Sanders, renewed her application for permission to apply for judicial review on other grounds at the commencement of this hearing. For reasons I gave orally at the time, which substantially reproduced the reasons of Kerr J and the responses of the Defendant, those applications were refused. Accordingly, argument in this case was directed to the three grounds for which Kerr J granted permission.
It is convenient to address those grounds of challenge in the order set out by Kerr J. But first, it is necessary to set out the relevant statutory provisions for housing allocation schemes and the relevant parts of the Equality Act 2010, and to summarise the relevant factual background.
The Statutory Schemes
The Housing Act 1996 provides in Part VI for the allocation of housing accommodation. S166A and s169 provide (as is material):
"166A Allocation in accordance with allocation scheme: England
(1) Every local housing authority in England must have a scheme (their "allocation scheme") for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.
For this purpose "procedure" includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken.
(2) The scheme must include a statement of the authority's policy on offering people who are to be allocated housing accommodation—
(a) a choice of housing accommodation; or
(b) the opportunity to express preferences about the housing accommodation to be allocated to them.
(3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to—
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local housing authority under section 190(2), 193( 2) or 195(2) (or under section 65( 2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); and
(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).
The scheme may also be framed so as to give additional preference to particular descriptions of people within one or more of paragraphs (a) to (e) (being descriptions of people with urgent housing needs).
The scheme must be framed so as to give additional preference to a person with urgent housing needs who falls within one or more of paragraphs (a) to (e) and who –
(i) is serving in the regular forces and is suffering from a serious injury, illness or disability which is attributable (wholly or partly) to the person's service,
(ii) formerly served in the regular forces,
(iii) has recently ceased, or will cease to be entitled, to reside in accommodation provided by the Ministry of Defence following the death of that person's spouse or civil partner who has served in the regular forces and whose death was attributable (wholly or partly) to that service, or
(iv) is serving or has served in the reserve forces and is suffering from a serious injury, illness or disability which is attributable (wholly or partly) to the person's service.
For this purpose "the regular forces" and "the reserve forces" have the meanings given by section 374 of the Armed Forces Act 2006.
(4) People are to be disregarded for the purposes of subsection (3) if they would not have fallen within paragraph (a) or (b) of that subsection without the local housing authority having had regard to a restricted person (within the meaning of Part 7).
(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include—
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a person and the authority's district.
(6) Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation—
(a) to a person who makes a specific application for that accommodation;
(b) to persons of a particular description (whether or not they are within subsection (3)).
…
(8) The Secretary of State may by regulations specify factors which a local housing authority in England must not take into account in allocating housing accommodation.
(9) The scheme must be framed so as to secure that an applicant for an allocation of housing accommodation—
…
(c) has the right to request a review of a decision mentioned in paragraph (b) …, and to be informed of the decision on the review and the grounds for it.
(10) As regards the procedure to be followed, the scheme must be framed in accordance with such principles as the Secretary of State may prescribe by regulations.
(11) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.
…
(14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.
…
169.—Guidance to authorities by the Secretary of State .
(1) In the exercise of their functions under this Part, local housing authorities shall have regard to such guidance as may from time to time be given by the Secretary of State.
(2) The Secretary of State may give guidance generally or to specified descriptions of authorities."
The Equality Act 2010 provides (as is material):
"6 Disability
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
(2) A reference to a disabled person is a reference to a person who has a disability.
…
11 Sex
In relation to the protected characteristic of sex—
(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;
(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.
…
13 Direct discrimination
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
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(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.
…
15 Discrimination arising from...
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