R (Nur) v Birmingham County Council

The court held that the defendant's housing allocation policy, as operated in practice, unlawfully disadvantaged households containing an adult with disabilities. The decision applied the duty in section 166A of the Housing Act 1996 (the authority must allocate housing only in accordance with its scheme) together with the Equality Act 2010 tests for indirect discrimination (section 19) and the duty to make reasonable adjustments (section 20 and Schedule 2). The judge found that the preference given in the policy to households with dependent children for houses, combined with the practical operation of the bidding system, produced a de facto bar to adapted housing for disabled adults living in households without children.

Key legal principles applied were: (i) an allocation scheme must be followed (s.166A(14) Housing Act 1996); (ii) a provision, criterion or practice that puts a protected group at a particular disadvantage is unlawful under s.19 EA unless it is a proportionate means of achieving a legitimate aim; and (iii) public bodies operating housing allocation functions are subject to proactive reasonable adjustment duties under Part 3 of the Equality Act 2010 (including Schedule 2).

Background and parties

The claimants were a mother (first claimant) and her adult daughter (second claimant) who suffers from cerebral palsy and learning difficulties. The defendant is Birmingham City Council, which operates a Choice Based Lettings (CBL) housing allocation scheme and has limited adapted housing stock.

Nature of the claim and relief sought

• The claim was a public law and discrimination challenge to the Council's housing allocation policy and its operation. The claimants sought declarations and relief that the policy or its operation was unlawful under the Equality Act 2010 and the Housing Act 1996 and that reasonable adjustments were required.

Issues framed by the court

• Whether the Council followed its allocation scheme as required by section 166A Housing Act 1996.
• Whether the allocations policy and its operational practice amounted to indirect discrimination under section 19 Equality Act 2010.
• Whether the Council breached its duty to make reasonable adjustments (section 20 and Schedule 2 or 4 EA) and whether the duty arises under Part 3 or Part 4 of the Equality Act.
• Whether there was a breach of the Public Sector Equality Duty (section 149 EA) and whether the policy was Wednesbury unreasonable.

Court’s findings and reasoning

• The judge accepted statistical evidence that disabled adults are more likely to live with parents and are less likely to live in households with children. He further found, on the evidence, that in practice adapted properties which came up for letting were houses and that the Council's operational practice effectively prioritised households with dependent children for houses by skipping bids from households without dependent children.
• On section 166A(14) the Court reiterated that the allocation scheme must be followed. The practical operation of the policy (skipping bids) had to be consistent with the published scheme; the judge examined whether skipping was consistent and when it could be lawful.
• On indirect discrimination (s.19 EA) the Court concluded that disabled households were put at a particular disadvantage because the pool of properties they could realistically secure was smaller than for non-disabled households and that the preferential rule for households with dependent children further reduced that pool. The Council accepted the aim (safeguarding houses for families with children) was legitimate but the judge found the measure was not proportionate in practice, given the impact on disabled adults living in households without children.
• On reasonable adjustments the Court held that the Council was discharging a public function in operating the allocation scheme and was therefore subject to the proactive duties in Part 3 EA (Schedule 2). The Council had not taken reasonable steps to avoid the disadvantage to disabled households generally; ad hoc allocation to the claimant outside the bidding process did not discharge the broader proactive duty.
• The PSED ground was not determined because it had not been pleaded in the amended grounds and permission to rely on it was not sought. The Wednesbury ground added nothing and was dismissed.

Result

The judge concluded that the policy, as operated, amounted to indirect discrimination and that the Council had failed to make reasonable adjustments; he invited the parties to agree an appropriate order.

This first-instance claim succeeded in part. The court held that Birmingham City Council's housing allocation policy, as operated in practice, unlawfully indirectly discriminated against households containing an adult with disabilities (contravening section 19 Equality Act 2010) and that the Council failed to discharge its proactive duty to make reasonable adjustments in operating its allocation function (Part 3 Equality Act 2010 / Schedule 2). The court concluded these failings arose from the combination of: the policy preference for households with dependent children when allocating houses; the practical operation of the CBL bidding and shortlisting process (skipping bids); and the absence of monitoring or procedural guidance. The court declined to decide on the Public Sector Equality Duty ground because it was not pleaded and dismissed the Wednesbury claim as adding nothing to the discrimination grounds.