R (Willott) v Eastbourne Borough Council

The claimant challenged Eastbourne Borough Council's decision (upheld on review) to disqualify her from joining the housing register under rule (d) of its allocation policy on the basis of alleged serious anti-social behaviour. The key legal issues were (1) the proper construction of rule (d) and whether a residual discretion to admit applicants who fail the rule was required by law, (2) whether the rule amounted to indirect discrimination under section 19 of the Equality Act 2010, and (3) whether the defendant had misapplied the policy in the claimant's case and breached duties under sections 15, 20 and 21 of the Equality Act 2010 and section 166A(9) of the Housing Act 1996.

The court held that rule (d) must be read in a common-sense way to require the decision-maker to assess whether the behaviour would have entitled the landlord to a possession order under the Housing Act 1985, which entails consideration of the applicant's personal circumstances (including disability). There is no legal requirement that an allocations scheme contain a separately worded residual discretion to admit applicants who otherwise meet the disqualification test. The claimant failed to prove group disadvantage under section 19 because the evidence did not establish that people with the claimant's disabilities (ADHD and autistic spectrum condition) are disproportionately excluded by the PCP; the court also found no sufficient causal link for a section 15 discrimination arising from disability claim. The decision-maker had not unlawfully departed from the published scheme in the way alleged. Accordingly the claim was dismissed.

The claimant, who had been a secure tenant, applied to join the defendant council's housing register. The council refused her application under category (d) of its allocation policy which disqualifies applicants whose antisocial behaviour is sufficiently serious to make them unsuitable to be council tenants. That policy tied the test to behaviour which would have entitled the council to a possession order under the Housing Act 1985. The claimant, diagnosed with adult ADHD and traits of autistic spectrum condition and with a history of alcohol use and various incidents at her tenancy, sought judicial review on multiple grounds: construction of the policy and alleged unlawful fettering; indirect discrimination under section 19 Equality Act 2010; failure to follow the scheme; discrimination arising from disability under section 15; failure to make reasonable adjustments under sections 20–21; and lack of adequate published criteria under section 166A(9) and Lumba principles.

Nature of the application: judicial review challenging the council's decision (review decision dated 4 January 2022) refusing qualification for the housing register and the lawfulness of the allocation rule.

Issues framed by the court:

• How should rule (d) be construed: is it a factual test or does it require evaluative judgment allowing consideration of personal circumstances (including disability)?
• Does the allocations policy unlawfully fetter discretion by lacking a residual discretion to admit exceptional cases?
• Does the PCP indirectly discriminate against persons with neurodevelopmental disabilities (ADHD, autism) and, if so, is it justified?
• Did the council breach duties under sections 15, 20 and 21 Equality Act 2010 in applying the rule to the claimant?
• Was the scheme insufficiently transparent in breach of section 166A(9) and Lumba principles?

Court’s reasoning (concise): the court interpreted rule (d) purposively: the test enquires whether the behaviour would have entitled the council to a possession order and therefore necessarily permits consideration of the applicant's personal circumstances (so the policy is not a rigid, fact-only rule). There is no statutory or common-law requirement that an allocations scheme must contain a separately expressed residual discretion to waive a disqualification; the judge accepted prior authority (including detailed analysis of Part VI HA 1996) that no such implied duty exists. On equality grounds the claimant failed to establish the comparative group disadvantage required by section 19 because the empirical material (including expert screening reports, a 2007 DRC review and an anecdotal journal analysis) did not demonstrate a disproportionate impact on people with ADHD/ASD, and the claimant’s own antisocial incidents were materially related to alcohol use. The court also rejected grounds alleging breach of section 15 (no established causal link between disability and the conduct causing disqualification) and section 20/21 (no substantial group disadvantage established and available safeguards in the policy). The council’s published scheme, though capable of clearer drafting, was sufficiently transparent about its criteria and safeguards and did provide a direct-allocation safety valve in exceptional circumstances. The claim was dismissed.

The claim is dismissed. The court construed rule (d) of the allocation policy as requiring an evaluative assessment of whether the behaviour would have entitled the council to a possession order under the Housing Act 1985, thereby permitting consideration of the applicant’s personal circumstances (including disability). There is no legal obligation to include a separately worded residual discretion to admit applicants who otherwise fail the disqualification test. The claimant failed to establish indirect discrimination under section 19 of the Equality Act 2010, or discrimination arising from disability under section 15, or a failure to make reasonable adjustments under sections 20–21. The council had not unlawfully departed from its published scheme or failed in transparency obligations. All grounds of challenge therefore failed and the application is dismissed.