Webb-Harnden v Waltham Forest LBC

The Court of Appeal dismissed the appellant's challenge to a reviewing officer's decision that a private rented sector offer was a reasonable and suitable means of discharging the respondent's duty under section 193(2) of the Housing Act 1996. The court held that the reviewing officer had, in substance, had due regard to the public sector equality duty in section 149 of the Equality Act 2010 and had considered the impact of relocation on the appellant's family life, health and support network as part of the suitability and affordability assessment. The court rejected the submission that the respondent's policy used the benefits cap as a proxy to exclude those affected from accommodation in or near London and concluded that even if there had been an error it would not have changed the outcome because the Walsall offer was affordable and no suitable alternative in or near London was available.

Background and parties:

• The appellant is a single mother with three children who became unintentionally homeless and was found to be in priority need. The respondent is the London Borough of Waltham Forest.
• The respondent arranged an assured shorthold tenancy (24 months) in the private rented sector in Walsall and informed the appellant that acceptance or refusal would end the duty under section 193(2) of the Housing Act 1996.

Procedural history: The appellant requested a review of suitability under section 202 and the reviewing officer upheld the offer on 29 April 2022. The appellant appealed to the county court; Mr Recorder Midwinter KC dismissed the appeal on 14 September 2022. The appellant obtained permission to appeal to the Court of Appeal.

Nature of the claim / relief sought: The appellant challenged, under the review route provided by the Housing Act 1996, that the reviewing officer had breached the public sector equality duty (section 149 Equality Act 2010) by failing to have due regard to the discriminatory impact of relocating the appellant (a single mother affected by the benefits cap) out of London.

Issues framed:

• Whether the reviewing officer had had due regard to the matters in section 149 of the Equality Act 2010 when reviewing the suitability of the accommodation offered under section 193(2) of the Housing Act 1996.
• Whether the respondent’s policy or practice used the benefits cap as a proxy to send capped households away from London and, if so, whether that amounted to indirect discrimination.
• Whether any breach of section 149 would have made a difference to the outcome.

Reasoning and decision:

• The court analysed the specific housing functions being exercised under section 193(2) and the legal requirement to assess suitability, including affordability under the Homeless (Suitability of Accommodation) Order and related statutory provisions.
• The court held that the respondent’s policy, read as a whole, did not employ the benefits cap as a crude proxy to allocate people away from London; instead it required an individual assessment of affordability and of other factors such as disruption to employment, education, caring responsibilities and access to services.
• The reviewing officer expressly considered the matters raised by the appellant, addressed the effect of relocation on health, family and support networks, and carried out an affordability assessment. The court concluded that, in substance, the reviewing officer had had due regard to the relevant considerations in section 149.
• The court added that, even if a breach had existed, the outcome would have been the same because the Walsall property was affordable, there was no suitable three-bedroom property available in or near London at the relevant time and temporary accommodation in London would not have been affordable or available.

Wider context: The court emphasised that section 149 is a duty to have due regard in the exercise of public functions and not a freestanding entitlement to a different substantive result; authorities cited illustrate fact-sensitive application of the duty and the scope for local authority discretion in timing and method of discharging housing duties.

The appeal was dismissed. The Court of Appeal held that the reviewing officer had, in substance, complied with the public sector equality duty in section 149 of the Equality Act 2010 when reviewing the suitability of the private rented sector offer under section 193(2) of the Housing Act 1996. The respondent's policy did not use the benefits cap as a proxy to determine placements away from London, the reviewing officer had considered the appellant's particular disadvantages and affordability issues, and in any event the outcome would not have been different because the Walsall offer was affordable and no suitable accommodation in or near London was available.

The decision under review was that of a reviewing officer of the London Borough of Waltham Forest dated 29 April 2022. The appellant appealed to the county court at Central London; Mr Recorder Midwinter KC dismissed that appeal on 14 September 2022. The appellant then appealed to the Court of Appeal with permission; the Court of Appeal dismissed the appeal by judgment handed down 22 August 2023 ([2023] EWCA Civ 992).