Adesotu v Lewisham London Borough Council

A statutory homelessness appeal under section 204 of the Housing Act 1996 is not a claim for judicial review within the exception in section 113(3)(a) of the Equality Act 2010. Allegations of discrimination under that Act must therefore be brought through its Part 9 enforcement procedure.

A section 204 appeal is confined to points of law arising from the review decision. The County Court cannot ordinarily determine disputed primary facts. An exception permitting factual findings about the proportionality of an eviction under article 8 does not extend to discrimination claims. Earlier irregularities are superseded by a lawful review which gives the applicant a full opportunity to make representations.

A homeless applicant appealed under section 204 of the Housing Act 1996 against a local authority's review decision that suitable accommodation had been refused and that its housing duty had ended. Her grounds alleged disability discrimination under sections 15 and 19 of the Equality Act 2010, failure to accommodate her disability, and several housing-law errors.

The County Court struck out the discrimination grounds and part of the public sector equality duty ground for want of jurisdiction: [2019] EW Misc 3 (CC). The remaining grounds were stayed. The applicant appealed to the Court of Appeal, which considered whether a section 204 appeal could determine Equality Act claims, resolve disputed facts, or address matters which had not arisen from the reviewing officer's decision.

1. Appeal dismissed. A statutory appeal or review is not a claim for judicial review within section 113(3)(a) of the Equality Act 2010. That expression is a term of art confined to a claim brought in the High Court under Part 54 of the Civil Procedure Rules 1998. The resemblance between a section 204 homelessness appeal and judicial review does not bring the statutory appeal within the exception. Alleged contraventions of sections 15 and 19 therefore had to be pursued through the Part 9 enforcement procedure, with the procedural safeguards applicable to an Equality Act claim.

2. Whether an applicant satisfies the statutory definition of disability depends on findings of fact and an evaluative judgment applying that definition. The discrimination grounds raised disputed facts which could not be determined in a section 204 appeal. Such an appeal is confined to points of law, and the County Court cannot ordinarily act as the finder of primary facts.

3. The observations in R (CN) v Lewisham LBC did not overrule Bubb v Wandsworth LBC. They concerned the exceptional need to determine the proportionality of an eviction under article 8 where no possession proceedings were required. That context differs materially from a challenge to the discharge of a homelessness duty following refusal of an offer. It also differs from a discrimination claim under the Equality Act 2010.

4. Section 204 permits an appeal only on a point of law arising from the review decision. The review replaces or continues the original decision-making process. An alleged defect in the original process is superseded where the applicant has a full opportunity during review to present the relevant facts and arguments. The discrimination matters had not been raised before the reviewing officer and were not sufficiently obvious to place the authority on notice that the applicant claimed disability status. Grounds 1, 2 and 3(c) were therefore also outside the section 204 jurisdiction on that basis.

5. The court left open whether unlawfulness in an antecedent housing policy may be challenged through a section 204 appeal. The issue was unnecessary to decide and should await a case in which it is determinative. Bean LJ gave the judgment; McCombe and Lewison LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the striking out of Grounds 1, 2 and 3(c).
2. County Court at Central London: His Honour Judge Luba QC struck out the discrimination grounds and part of the equality-duty ground for want of jurisdiction, granted permission to appeal, transferred the appeal and stayed the remaining grounds: [2019] EW Misc 3 (CC).