AB & Anor, R (on the application of) v Westminster City Council

A local housing authority’s duty under Housing Act 1996 s 193(2) is immediate, but suitability disputes will generally be resolved through the statutory review and County Court appeal process. A judicial review challenge to changed accommodation should be specifically pleaded and supported by evidence identifying why the authority’s assessment is irrational.

For indirect discrimination under Equality Act 2010 s 19, the claimant must identify the provision, criterion or practice, establish group disadvantage and individual disadvantage, and then address proportionality. A public procurement practice may constitute a PCP, but group disadvantage requires evidence or a sufficiently obvious inference. The public sector equality duty is a duty of process, not outcome.

The claimants, a disabled couple, were accepted as owed the main housing duty by Westminster City Council. Their accommodation was initially unsuitable because they were separated, one claimant’s accommodation was not wheelchair accessible, and they were not accommodated together with their support dog. The council accepted breach until 17 October 2023, when the couple were placed together in wheelchair-accessible accommodation with the dog.

The claimants challenged the continuing suitability of that accommodation, the council’s policies concerning accommodation with animals, and its compliance with the public sector equality duty. The court considered whether the current accommodation was irrationally assessed as suitable, whether the animal-related practices constituted indirect discrimination, and whether the council had properly considered the claimants’ disabilities.

1. Ground 1. The council’s breach of Housing Act 1996 ss 188(1) and 193(2) up to 17 October 2023 was allowed on the basis of the concession. No continuing breach was established. The court was not prepared to find the council irrational in treating the Town Y accommodation as suitable in the short to medium term.
2. A suitability challenge arising after the proceedings were issued required amended pleadings identifying the alleged defects and supporting evidence. Procedural rigour was necessary to ensure that the council could respond fairly and the court could determine the issue properly. The statutory review under ss 202 and 204 was the more appropriate remedy. It was not a jurisdictional bar to judicial review, but the court’s discretion meant that judicial review should not ordinarily determine a suitability dispute where Parliament had provided a more suitable procedure.
3. The issue was whether the council’s conclusion was irrational, not whether the judge considered the accommodation suitable. The evidence did not establish irrationality. The psychiatric evidence was limited and principally addressed longer-term concerns.
4. Ground 2. Permission was granted on the renewed application, but the discrimination claim failed. A requirement for medical evidence of need to live with an animal was a PCP. The claimants had not shown group or individual disadvantage. In any event, prioritising scarce animal-friendly accommodation for evidenced medical need would have been a proportionate means of pursuing a legitimate aim.
5. The council’s procurement arrangements, including regular providers who did not accept dogs and ad hoc arrangements, could also constitute a PCP. However, the evidence did not establish that this practice generally disadvantaged disabled persons. The proportionality issue therefore did not arise.
6. Ground 3. The public sector equality duty under Equality Act 2010 s 149 imposed a duty of process. The council had recognised and considered the claimants’ disabilities and their consequences for accommodation. Complaints about delay or the substantive outcome did not establish breach of the duty. The judicial review was dismissed, save for the conceded historical breach, with relief and costs to be addressed.

First-instance judicial review. The claim was allowed only to the extent of the conceded breach of Housing Act 1996 ss 188(1) and 193(2) before 17 October 2023; the remaining grounds were dismissed.