Council Misunderstood the Terms of its Housing Allocation Scheme
07/06/2021
The difference between private and public law proceedings is relatively theoretical and therefore it is not surprising that now and then, perhaps particularly during a worldwide pandemic, busy local authority In-house Counsel misinterpret the scope and reasoning behind Judicial Review. In R (on the application of Nur and another) v Birmingham City Council [2021] EWHC1138 (Admin), David Lock QC, sitting as a deputy High Court judge, reminded Birmingham City Council about the correct response when handling a Judicial Review matter.
Background to the decision
The Judicial Review concerned the application of the Defendant local authority’s (LA) housing policy concerning families with disabled children. The Claimant (N) was a mother to three adult children who resided with her. One of her children (Z) had learning disabilities and cerebral palsy. After losing her home when her private landlord decided to repossess the property, N used LA’s bidding system to try and secure a new home. LA accepted the family’s homeless status. However, although the properties N bid for had been advertised as being suitable for a person with Z's level of disability, her bids were always rejected because she had no ‘dependent’ children.
Even when N was first in line for a bid, her bids were skipped as per LA’s policy stating: "preference for houses with two or more bedrooms will be allocated to families with dependent children". Because there were so few houses to suit families with children LA’s policy meant that, in reality, N's bids would always be rejected.
N’s Solicitors sent LA a Pre-Action Protocol Letter, setting out why its bidding process regarding houses for those with disabilities was unlawful. In response, LA provided N and her adult children with a suitable home outside the bidding process.
Once LA found N a property it wrote to her Solicitors to suggest that the offer of a home made her legal case academic and invited them to put forward resolution proposals.
The Judge’s comments
Mr Lock QC upheld the Judicial Review challenge. He observed that disabled households were only able to have any chance of bidding successfully for adapted properties under the LA’s bidding system. Because non-disabled households were able to bid for adapted and non-adapted properties, they had a far greater range of properties to choose from. The rule that gave housing priority for those with children further diminished the number of properties available as statistically, disabled households were more likely to be child-free. This amounted to indirect discrimination under section 19 of the Equality Act 2010.
With regards to proportionality and pursuing a legitimate aim, although giving households with children access to outside space was a legitimate aim of LA’s housing policy, access to the outdoors was equally important to adult children with learning disabilities. It could not be proportionate to treat parents who had to provide care for a disabled adult with learning difficulties so adversely in comparison to all families with children
Mr Lock QC also concluded that LA failed to make any adjustments to its housing policy, even though there was ample scope to create a fairer system. LA’s duty under s.20(3) of the Equality Act 2010 required action to better the disadvantage suffered by all disabled people under the policy; its duty did not merely apply to N.
Comment
One of the most important takeaways from this case is the feedback provided by Mr Lock QC on LA’s handling of the Judicial Review procedure, particularly in relation to it trying to argue that since it had found N a home, the Judicial Review challenging the lawfulness of its allocation of housing was ‘academic’.
Mr Lock QC stated:
“It cannot be right that public bodies can avoid legitimate examination of the lawfulness of their decision-making processes by making an exception in the case of an individual affected by that process, and then argue that the challenge to the decision-making process, which was previously applied to that individual claimant and continues to be applied to others in like circumstances, should not proceed because it is rendered ‘academic’ by a decision of the public body to benefit an individual claimant outside the terms of the challenged decision-making process.”
He went on to express his hope that:
“Those having responsibility for the operation of the legal & governance department at Birmingham City Council so as to ensure that the council fully understands its duties to the court when it is engaged in public law litigation”.
The full text of the decision can be read here.
