Nur & Anor, R (On the Application Of) v Birmingham City Council

A local authority must apply its housing allocation scheme according to the policy’s true construction. A provision giving families with dependent children a preference for houses does not, without more, mandate allocation to them over every other applicant. Provisions stating that adapted properties will be allocated to persons with physical or sensory disabilities have distinct operative force.

A policy granting a “head start” must also identify the factors and weighting by which other applicants may prevail. Public bodies must provide candid disclosure and evidence from the relevant decision-makers when defending a judicial review, particularly where compliance with the Public Sector Equality Duty is challenged.

The claimants challenged Birmingham City Council’s operation of its Housing Allocation Scheme. The Council repeatedly skipped the first claimant’s bids for adapted houses because her adult disabled daughter was not a dependent child under the Council’s interpretation of the scheme.

The claim also challenged the scheme on discrimination, equality-duty, reasonable-adjustment, unfairness and irrationality grounds. The Council failed to file an acknowledgment of service, detailed grounds and evidence in accordance with the procedural rules and court directions. It later offered accommodation and asserted that the claim had become academic. The central issue determined at this stage was whether the Council had misunderstood and unlawfully applied its own Allocation Scheme.

1. The claim was not academic. The claimant retained standing to challenge the lawfulness of the Allocation Scheme, notwithstanding the Council’s later discretionary offer of accommodation. A public body cannot avoid review of an ongoing decision-making process by making an exception for the individual claimant.
2. Participation in judicial review proceedings. CPR 54.9 distinguishes the conditions for taking part in a judicial review from the later filing of detailed grounds and evidence under CPR 54.14. The Council could not rely on CPR 54.14 to justify late evidence after failing both to file an acknowledgment of service and to comply with directions. Permission to rely on the late material was refused.
3. Duty of candour and equality evidence. The Council had not disclosed the equalities analysis or evidence from the decision-makers responsible for adopting the policy. Evidence from an officer explaining her own view of the policy was inadequate to demonstrate compliance with the Public Sector Equality Duty. The discrimination claims were therefore adjourned for determination on a proper factual basis.
4. Construction of the Allocation Scheme. The policy distinguished between a preference for houses with two or more bedrooms to be allocated to families with dependent children and provisions stating that adapted properties will be allocated to persons with physical or sensory disabilities. The latter provisions were not subordinate to the former. The Council acted unlawfully by skipping the claimant’s bid for an adapted property merely because she had no dependent children.
5. The reference to preference gave families with children a “head start”, or weighting factor, but did not make the presence of children decisive. The Council had unlawfully operated the policy as an automatic priority rule. Further, a transparent and predictable scheme giving a head start had to identify the other factors and weightings capable of outweighing that initial advantage.
6. The ground 1 challenge succeeded. Declarations were to be made that the Council had misunderstood its Allocation Scheme and had acted unlawfully in implementing it. Directions were to be considered for the outstanding discrimination claims.

First-instance judicial review proceedings in the Administrative Court. The judgment records earlier permission and interim-relief decisions but no appeal from them.