Nur & Anor v Birmingham City Council

The claim was a public law challenge to Birmingham City Council's Allocation Scheme and to a decision to skip the claimant's bid for an adapted house. The court applied section 166A of the Housing Act 1996 (which requires local authorities to allocate housing only in accordance with their scheme) and addressed principles of statutory construction of the Allocation Scheme, the duty of candour in judicial review, and the public sector equality duty under section 149 of the Equality Act 2010.

The judge found that the Allocation Scheme distinguishes between a general "preference" for houses to be allocated to families with dependent children and categorical commitments that properties with adaptations "will be allocated" to persons with physical or sensory disabilities. The Council had misinterpreted and unlawfully implemented its Scheme by treating the presence of dependent children as a decisive rule which caused adapted houses to be allocated to families with children rather than to people with disabilities. The court refused the Council's late application to file detailed grounds and witness evidence because of procedural failures and inadequate disclosure, and declined to determine the discrimination/PSED issues at this hearing because the Council had not provided the necessary evidential foundation.

This is a first instance judicial review. The claimants are Mrs Habibo Nur and her daughter Zakiya, who has cerebral palsy and needs adapted accommodation. They challenged decisions of Birmingham City Council under the Housing Act 1996 and the Equality Act 2010 after the Council skipped the claimant's successful bid for an adapted three-bedroom house on the Council's online bidding system. The claim sought, among other relief, declarations about the lawfulness of the Allocation Scheme and that the Council had acted unlawfully in applying it.

The procedural history included initial refusal of interim relief and an initial refusal of permission, renewal of the permission application and then grant of permission. The Council repeatedly failed to file an Acknowledgement of Service and complied late or not at all with court directions to serve detailed grounds and evidence; shortly before trial it sought permission to serve late grounds and to rely on a witness statement which did not disclose key documents or the equality analysis.

The court framed issues including (i) whether the Council had acted contrary to section 166A by misinterpreting and misapplying its Allocation Scheme (ground 1), (ii) whether the Allocation Scheme unlawfully discriminated against households with disabled adults and breached the public sector equality duty and the duty to make reasonable adjustments, and (iii) procedural questions about the Council's failure to comply with the duty of candour and case management rules (CPR 54).

On ground 1 the judge held that the Allocation Scheme, properly construed, gives a "preference" to families with dependent children for houses but separately provides that sheltered housing/extra care will be allocated to older people and that properties with adaptations "will be allocated" to persons with physical or sensory disabilities. The Council had misunderstood and applied its policy so that the absence of dependent children operated as a decisive bar to allocation of an adapted house. That misapplication breached the duty in section 166A(14) to allocate only in accordance with the scheme. The court therefore upheld ground 1 and directed that declarations be made to that effect.

The court refused the Council permission to rely on late detailed grounds and the witness statement of Ms Pumphrey because the evidence failed to disclose decision-making documents or the equalities analysis and did not comply with the respondent's duty of candour; for that reason the court declined to decide the discrimination and PSED challenges at the hearing and made directions for the future conduct of those claims so they can be properly resolved with adequate disclosure and evidence. The judge emphasised the Council's repeated procedural failures, the duty of candour required in public law litigation, and the need for decision‑maker evidence and equalities analysis where PSED compliance is relied upon.

First instance: The claim was allowed in part. The court held that the Council had misinterpreted and unlawfully implemented its Allocation Scheme by treating the presence of dependent children as decisive in allocating houses and thereby skipping an otherwise eligible bid for an adapted property; Ground 1 was upheld and declarations ordered. The court refused permission to the Council to file late detailed grounds and to rely upon belated witness evidence because of procedural failures and inadequate disclosure, and declined to determine the discrimination/PSED grounds at this hearing, directing further steps to allow those issues to be fully examined.