Michelle Biden v Waverly Borough Council

The Court of Appeal considered whether the reviewing officer made sufficient inquiries to determine the suitability of a final offer of accommodation under Part 7 of the Housing Act 1996, when the applicant had the protected characteristics of gender reassignment and disability. The decision addressed the duties in sections 189B, 193A, 182, 202 and 204 HA 1996, the Homelessness Code of Guidance (chapter 17), and the public sector equality duty under section 149 of the Equality Act 2010.

The court identified the narrow issue as whether Ms Donaldson should have consulted a Lesbian, Gay, Bisexual, Transgender (LGBT) liaison officer rather than, or in addition to, the local police community support officer (PCSO) about the incidence of transgender hate crime in the area. The reviewing officer had made inquiries of a PCSO, a local GP practice, and considered medical reports and representations, and had assessed proximity to services, public transport, support networks and safety.

The court held that the scope and scale of inquiries is primarily for the local housing authority and that the inquiries made by the reviewing officer were sufficient. It rejected the argument that consultation with an (unspecified) LGBT liaison officer was required, found no failure to have due regard to the public sector equality duty and dismissed the appeal.

This was an appeal under section 204 of the Housing Act 1996 against a review decision that upheld a local authority's final offer of accommodation and the authority's discharge of its homelessness duty under section 189B. The appellant, a trans woman with physical disabilities (including limited mobility due to osteoarthritis and ongoing mental health issues), had been offered a ground-floor self-contained flat within the respondent borough approximately 0.9 miles from her existing home. She refused the offer and sought review, alleging the property was unsuitable because of distance from her GP and support network, restricted mobility, and a risk of transgender-motivated harassment. She also asserted that the authority had failed to have due regard to the public sector equality duty.

The review was conducted by a housing options manager (Ms Donaldson). She interviewed the appellant, considered medical reports and solicitor representations, and made inquiries of a police community support officer and a local GP practice. The PCSO reported low levels of violent crime and no known LGBT hate crime in the immediate area. Ms Donaldson concluded the accommodation was suitable on grounds including layout, affordability, door-entry security and proximity to public transport, GP services and the appellant's existing links, and that the original decision had properly considered the appellant's protected characteristics.

The Court of Appeal framed the operative issue narrowly: whether the reviewing officer should have made further inquiries of an LGBT liaison officer rather than the PCSO. The court reviewed relevant authorities on the scope of inquiries, the standard of review (including Danesh, Codona, Pieretti, Hotak, Haque and McMahon) and the interpretation and application of the PSED. It accepted that transgender hate crime is under-reported in general but found no basis in the material before the reviewing officer to conclude that consultation with an unidentified force-wide LGBT liaison officer would have produced materially different information. The court emphasised that the scope of inquiries is for the housing authority and intervention is justified only if no reasonable authority could have been satisfied by the inquiries made. Applying those principles, the court concluded that Ms Donaldson had addressed the appellant's disabilities, gender reassignment and other circumstances with sufficient rigour and focus, made appropriate inquiries, and had not unfairly ignored equality considerations. The appeal was therefore dismissed.

Nature of the claim/application: appeal under section 204 HA 1996 challenging the review decision that an offered property was suitable and that the homelessness duty had been discharged; alleged failure to make adequate inquiries and breach of the PSED.

Issues framed by the court:

• Whether the reviewing officer ought to have consulted an LGBT liaison officer (rather than, or in addition to, the PCSO) about incidence of transgender hate crime in the area.
• Whether the reviewing officer complied with the public sector equality duty (section 149 Equality Act 2010) in assessing suitability of accommodation.
• The appropriate standard of review of the reviewing officer's decision.

Court's reasoning in brief: the reviewing officer made targeted inquiries (PCSO, GP practice), considered medical evidence and representations, and assessed location, transport, safety and support needs. The court would not require housing authorities to make every conceivable inquiry; it will only interfere where no reasonable authority could have been satisfied by the inquiries made. The speculative prospect that an LGBT liaison officer would have provided superior or different information did not mean the inquiries were insufficient. The PSED had been addressed with rigour and focus and did not require a different outcome.

Appeal dismissed. The Court held that the reviewing officer made sufficiently targeted inquiries (including of a PCSO and a local GP practice), properly considered the appellant's protected characteristics (gender reassignment and disability) together with proximity to services, public transport, security and support networks, and that there was no obligation to consult an unspecified force-wide LGBT liaison officer. The scope and scale of inquiries in suitability assessments are primarily for the local housing authority and the reviewing officer's inquiries were reasonable and lawful.

On appeal from the County Court at Guildford (Her Honour Judge Nisa), where the appellant's section 204 appeal was dismissed by judgment dated 3 August 2021. This Court (Court of Appeal) heard the appeal and dismissed it ([2022] EWCA Civ 442).