AK, R (on the application of) v Westminster City Council

A housing allocation policy may indirectly discriminate where it effectively imposes a residence requirement that disadvantages women fleeing violence, because women form a substantially higher proportion of that group. A public authority cannot rely on theoretical discretion to remove that disadvantage without evidence that the discretion is exercised in that way. Once indirect discrimination is established, the authority must prove justification; submissions about what it might have shown are insufficient. The public sector equality duty requires active, evidenced consideration of relevant equality impacts, guidance and statutory developments. A local authority’s duty concerning children requires more than possession of relevant information: the decision-maker must identify and actively promote the child’s principal needs. Relief may be declaratory, with reconsideration directed on a non-discriminatory basis where the policy can be made lawful without being quashed.

The claimant, a social housing tenant in a neighbouring London borough, sought a reciprocal transfer to Westminster after her child had been sexually abused by a neighbour who remained next door. Westminster refused, relying on housing demand and the effect of rehousing her out of turn.

She challenged the relevant parts of Westminster’s Housing Allocation Scheme and the refusal decision on grounds including indirect sex discrimination, breach of the public sector equality duty, breach of the duty under section 11 of the Children Act 2004, breach of Articles 8 and 14 of the ECHR, and unlawful fettering or failure to follow the policy. The court considered whether the policy unlawfully treated non-Westminster tenants less favourably, whether Westminster had justified any discrimination, and whether the individual decision had lawfully addressed the child’s circumstances and the policy’s discretionary crisis provision.

1. Policy unlawfulness. Section 5.3 of the Housing Allocation Scheme was a provision, criterion or practice which effectively imposed a requirement to be a Westminster tenant. It was materially less advantageous than section 5.1, which applied to existing Westminster tenants and addressed threatened or actual violence, urgency and safety. The difference was not removed by the existence of a theoretical discretion: Westminster supplied no evidence that the discretion was exercised so as to treat the two groups alike.
2. Indirect discrimination. People seeking to move borough to escape violence were disproportionately women. Section 5.3 therefore put women at a particular disadvantage and caused disadvantage to the claimant. The possibility that she could live safely in another borough did not answer whether Westminster unlawfully discriminated against her. Westminster had not shown that the policy was a proportionate means of achieving a legitimate aim under section 19(2)(d) of the Equality Act 2010. The court did not need to resolve the precise consequences of Coll.
3. Public sector equality duty. The policy had remained materially unchanged despite statutory and guidance developments. Westminster could identify no evidence that it had considered the duty when reviewing the policy. The absence of evidence, together with the policy’s failure to reflect relevant equality guidance, established non-compliance.
4. Children Act duty. Although Westminster accepted that section 11 of the Children Act 2004 was engaged, there was no evidence that the decision-maker considered the child’s situation. Possessing relevant information was insufficient. The decision therefore breached section 11.
5. Individual decision and remedy. The decision failed to show consideration of the crisis referred to in section 5.3.2 and appeared to have been made solely by reference to queue jumping. The court did not need finally to determine whether an unofficial policy unlawfully fettered discretion. The ECHR issue and the policy’s own section 11 compliance were also left undecided.
6. The court declared section 5.3 unlawful insofar as it related to women needing to move to escape violence. It declined to quash the policy because guidance or justification might make it lawful. Westminster was required to reconsider the claimant’s application as if she were applying under section 5.1 and communicate a reasoned decision by 4pm on 30 April 2024. The damages claim was to be transferred if not agreed.