Michelle Biden v Waverly Borough Council

When assessing accommodation offered to a homeless applicant with protected characteristics, a housing authority must make the inquiries necessary to decide suitability fairly. The scope and scale of those inquiries are for the authority, subject to intervention where no reasonable authority could be satisfied on the inquiries made. The public sector equality duty requires substantive, rigorous and open-minded consideration of how the applicant’s characteristics affect disadvantage, needs and suitability. It is fact-sensitive and does not require a particular outcome, a perfect match, or enhanced protection for gender reassignment without express statutory provision. A statutory appeal reviews the legality of the review decision and does not re-make the suitability assessment.

Mrs Biden, a homeless trans woman with disabilities, appealed under section 204 of the Housing Act 1996 against Waverley Borough Council’s review decision that a final offer of accommodation was suitable and that its homelessness duty had ended. The offer was a ground-floor flat approximately 0.9 miles from her existing accommodation. The reviewing officer considered her mobility, medical care, support network, safety concerns and protected characteristics, and obtained information from a local police support community officer.

The County Court at Guildford dismissed her appeal on 3 August 2021. Before the Court of Appeal, the principal issue was whether the reviewing officer should have made further inquiries of an LGBT liaison officer rather than the local PCSO, and whether the public sector equality duty had been properly discharged.

Appeal dismissed. The relevant decision was the reviewing officer’s decision, not the County Court’s judgment. The statutory appeal was confined to points of law and did not permit the court to re-make the suitability assessment.

1. The inquiries required are those necessary to decide fairly whether accommodation is suitable. Their scope and scale are primarily for the local housing authority. The court should not intervene unless no reasonable housing authority could have been satisfied on the basis of the inquiries made. This approach was supported by Codona v Mid-Bedfordshire District Council [2005] EWCA Civ 925, R v Royal Borough of Kensington and Chelsea, ex p Bayani (1990) 22 H.L.R. 406, R (on the application of Khatun) v Newham London BC [2004] EWCA Civ 55 and Hotak v Southwark London Borough Council [2016] A.C. 811.
2. Pieretti v Enfield LBC [2010] EWCA Civ 1104 was factually distinguishable. In that case the evidence raised a real possibility that the applicant was disabled and the reviewing officer failed to inquire further. It did not impose a requirement to take active steps to investigate disability in every case. The comparison with Shala v Birmingham City Council [2007] EWCA Civ 624 was also misplaced, because the expertise of an LGBT liaison officer and a local PCSO was not comparable to the medical expertise considered in Shala.
3. The public sector equality duty is complementary to the homelessness duty. It requires due regard, exercised with rigour, an open mind and sharp focus on the relevant protected characteristics. The weight and extent of the duty are fact-sensitive. It is not a free-standing duty to achieve a particular result, and the court cannot intervene merely because it would have given greater weight to equality implications. The approach in Haque v Hackney London Borough Council [2017] P.T.S.R. 769 and McMahon v Watford BC; Kiefer v Hertsmere BC [2020] EWCA Civ 497 was applied.
4. There was no statutory basis for a heightened duty relating specifically to gender reassignment. The reviewing officer made a composite assessment of Mrs Biden’s disability, gender reassignment, mobility, access to medical care, support network and safety concerns. The inquiries were reasonable and the PSED had been discharged. A requirement to consider more favourable treatment did not require a perfect match with Mrs Biden’s preferences or a move to Brighton.

• Court of Appeal (Civil Division) dismissed the appeal on 1 April 2022: [2022] EWCA Civ 442.
• County Court at Guildford dismissed Mrs Biden’s statutory appeal on 3 August 2021.