Katie-Leigh Webb-Harnden v London Borough of Waltham Forest

The public sector equality duty requires a public authority to give due regard to the specified equality needs when exercising its actual statutory function. It is a duty of substance rather than form, and does not require a particular substantive outcome.

When deciding whether to discharge the main homelessness duty by a private rented sector offer, a housing authority must assess suitability, including affordability and the applicant’s financial resources. It may take account of the effect of a benefits cap. The duty does not require it to perform a different function, provide temporary accommodation, alter an unchallenged allocation policy, or make discretionary payments to secure a different outcome.

A review decision should be read fairly and as a whole. It need not be set aside where the same result was inevitable.

The appellant, a single mother of three children, was accepted as homeless, in priority need and unintentionally homeless. The respondent owed her the main housing duty under section 193(2) of the Housing Act 1996.

The respondent arranged a 24-month private rented sector tenancy for a three-bedroom flat in Walsall. The appellant accepted it, but sought a review of its suitability. The reviewing officer held that the accommodation was affordable and suitable, and that no suitable three-bedroom accommodation in or near London was available. The County Court at Central London dismissed the appellant’s statutory appeal on 14 September 2022.

On appeal, the appellant contended that the reviewing officer had failed to have due regard, under section 149(1)(a) and (b) of the Equality Act 2010, to the asserted discriminatory impact of placing benefit-capped single mothers outside London.

1. Appeal dismissed unanimously. The reviewing officer had complied with the public sector equality duty in section 149 of the Equality Act 2010. Her decision that the Walsall tenancy was suitable, and that the respondent could discharge its section 193(2) duty by making that offer, was lawful.

2. The section 149 duty had to be assessed in the context of the function being exercised. The respondent was securing accommodation under section 193(2) of the Housing Act 1996. It was entitled to do so through a qualifying private rented sector offer, provided the accommodation was suitable. Suitability required consideration of affordability, including the applicant’s actual financial resources, social security benefits and housing costs under article 2 of the Homeless (Suitability of Accommodation) Order 1996.

3. The respondent’s policy did not use the benefits cap as a proxy for sending benefit-capped applicants outside London. Read fairly, it required an individual assessment of affordability alongside disruption to employment, education and caring responsibilities, access to medical facilities and support, and relevant household needs. Paragraph 3.14 simply recognised that benefit restrictions could affect affordability.

4. The reviewing officer considered the appellant’s separation from family and support networks, the physical and mental health of her and her children, medical and caring needs, travel to London, affordability, and the availability of accommodation nearer London. That was substantive due regard to the disadvantages asserted under section 149. The review decision was to be read fairly and as a whole, without an unduly technical search for defective language.

5. In any event, the decision would inevitably have been the same. No suitable temporary accommodation was available in or near London and it would in any event have been unaffordable. A housing authority may decide to discharge the main duty when it makes a suitable private rented sector offer. It is not generally required to defer that decision in the hope that other accommodation will become available, absent a realistic and material prospect such as an imminent development.

6. Section 149 is not a freestanding mechanism for obtaining a different substantive result. It did not require the respondent to provide temporary accommodation, make discretionary housing payments, or adopt an unchallenged different prioritisation policy.

• Court of Appeal (Civil Division): Dismissed the appeal in [2023] EWCA Civ 992. It upheld the reviewing officer’s decision that the Walsall private rented sector offer was suitable and lawfully discharged the section 193(2) duty.
• County Court at Central London: Mr Recorder Midwinter KC dismissed the appellant’s appeal against the review decision on 14 September 2022.
• Review decision: On 29 April 2022, the respondent’s reviewing officer upheld the offer of accommodation and concluded that it was reasonable and suitable.