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

A housing allocation policy may constitute indirect discrimination where its practical operation places disabled households at a particular disadvantage compared with non-disabled households. A legitimate aim does not justify a policy unless the authority proves that the means used are proportionate, having regard to the seriousness of the disadvantage in practice.

A public authority operating a statutory housing allocation scheme may owe a proactive duty to make reasonable adjustments for disabled persons generally. Adjusting the position of one claimant does not discharge that wider duty where the policy has a structural discriminatory effect.

The claimants challenged Birmingham City Council’s housing allocation policy under the Housing Act 1996 and the Equality Act 2010. Mrs Nur cared for her adult daughter, who had cerebral palsy and learning difficulties and required adapted accommodation.

The claim followed an earlier judgment concerning the interpretation and operation of the allocation policy. The remaining issues included indirect discrimination, the duty to make reasonable adjustments, the Public Sector Equality Duty and alleged Wednesbury unreasonableness.

1. The Council’s allocation scheme had to be operated in accordance with its published terms under section 166A(14) of the Housing Act 1996. Skipping bids was not unlawful in itself where it implemented the scheme, but it was unlawful where the reason for skipping conflicted with the policy.
2. In practice, disabled households were restricted to a substantially smaller pool of properties. Adapted properties were houses, and houses were given preference to households with dependent children. Disabled households without children were therefore placed at a particular disadvantage under section 19 of the Equality Act 2010.
3. Giving families with dependent children preference pursued a legitimate aim. It was nevertheless disproportionate. The Council had not shown a real need for giving that preference to all such households, nor had it weighed that aim against the effectively absolute detriment suffered by disabled households without children.
4. The relevant comparison concerned households with and without a disabled member, while avoiding a comparator defined by the protected characteristic itself. The court had to examine the practical operation of the PCP, not merely its theoretical wording.
5. The Council was operating a public function or service under Part 3 of the Equality Act 2010. The proactive reasonable-adjustment duty therefore applied. The Council had taken no adequate steps to address the disadvantage suffered by disabled persons generally. Possible adjustments included exempting adapted properties from the children preference, providing information about adaptable properties, and giving disabled households preference for properties capable of adaptation.
6. Allocating a property directly to Mrs Nur did not discharge the wider duty, because it did not remedy the structural disadvantage affecting other disabled households. The PSED ground was not determined because it had not been pleaded or permission obtained. The Wednesbury ground was dismissed: unforeseen discrimination did not make the policy one which no reasonable authority could adopt.

The judgment formed the second part of the trial. The earlier judgment is identified as [2020] EWHC 3526 (Admin). The present court determined the remaining grounds and invited the parties to agree an appropriate order.