Carly Jayne Willott, R (on the application of) v Eastbourne Borough Council

A housing allocation scheme may disqualify applicants whose anti-social behaviour is serious enough to make them unsuitable to be tenants, provided the scheme permits an evaluative assessment of the applicant’s circumstances. The statutory scheme does not require a separate residual discretion to waive the qualifying criteria. A possession order is relevant evidence but does not automatically satisfy the allocation test.

Indirect discrimination and discrimination arising from disability require evidence of the necessary causal links. A general association between disability and anti-social behaviour is insufficient. A policy may be justified where it protects residents and avoids the substantial costs of managing anti-social behaviour, particularly where the scheme itself permits consideration of disability and exceptional direct allocations.

The claimant sought judicial review of Eastbourne Borough Council’s decision, on review dated 4 January 2022, upholding her exclusion from the housing register under the Council’s anti-social behaviour rule. The rule excluded applicants whose anti-social behaviour was serious enough to make them unsuitable to be tenants.

The claimant had ADHD and an autistic spectrum condition. She argued that the rule was unlawful because it was inflexible, indirectly discriminatory, incompatible with the Equality Act 2010, and insufficiently transparent under the Housing Act 1996. The Council contended that the rule required an evaluative assessment of personal circumstances and that its application was lawful.

The central issues were the construction and legality of the allocation rule, its compatibility with equality duties, and the lawfulness of its application to the claimant.

The claim was dismissed. All six grounds of review failed.

1. Construction of rule (d). The rule required an evaluation of the nature of the behaviour and whether it was sufficiently serious to make the applicant unsuitable to be a tenant. Its reference to entitlement to a possession order under the Housing Act 1985 incorporated consideration of the matters relevant to reasonableness, including personal circumstances and disability. A possession order did not automatically establish that the allocation test was met. Once the test was satisfied, however, there was no further residual discretion to waive its consequence.
2. Residual discretion. Neither the Housing Act 1996 nor general public law principles required an allocation scheme to contain an overarching discretion to admit applicants who failed its qualifying criteria. In any event, the Council’s provision for direct allocations in exceptional circumstances supplied a full residual discretion.
3. Indirect discrimination. The claimant failed to establish that rule (d) placed persons with ADHD or autism at a particular disadvantage, or that it caused her individual disadvantage. The evidence did not establish the necessary causal link between those disabilities and the anti-social behaviour engaging the rule. The evidence instead pointed to alcohol use as a material cause. Alternatively, the rule was a proportionate means of achieving legitimate aims, including protecting residents and avoiding the resources required to manage anti-social behaviour.
4. Discrimination arising from disability. The claimant did not prove that the relevant behaviour arose in consequence of disability. The same proportionality conclusion would have applied in any event. Section 191 and Schedule 22 of the Equality Act 2010 also applied because the Council was required by section 166A(14) of the Housing Act 1996 to allocate in accordance with its scheme, although that exemption could not protect a discriminatory scheme itself.
5. Reasonable adjustments. The relevant group was people with neuropsychiatric conditions. The claimant did not establish substantial comparative disadvantage or an apparently reasonable adjustment. The proposed waiver or additional discretion would not have altered the operation of the rule.
6. Transparency. Although poorly drafted, rule (d) sufficiently stated the circumstances in which the statutory criteria would be exercised. The absence of a fuller explanation was undesirable but did not make the scheme unlawful.