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

The court held that the relevant aspects of Westminster City Council's Housing Allocation Scheme (notably section 5.3 on reciprocal transfers) operate as a provision, criterion or practice that is indirectly discriminatory against women in breach of sections 19 and 29 of the Equality Act 2010. The council had also failed to comply with its public sector equality duty under section 149 Equality Act 2010. The claimant had also established that the individual decision refusing a reciprocal transfer was unlawful for failure to have regard to the claimant's child in breach of section 11 Children Act 2004. The court declined to decide the Article 8/14 point.

Because the council presented no justification evidence for the indirect discrimination, the court found the discrimination unjustified. The court made a declaration of unlawfulness in respect of section 5.3 of the Policy but did not quash it, on the basis that the council could either issue lawful guidance or provide justification to cure the unlawful effect. The council was ordered to reconsider the claimant's application treating her as if she were a Westminster tenant and to communicate a fresh decision by 4pm on 30 April 2024.

This is a first-instance judicial review challenge to Westminster City Council's refusal to agree a reciprocal housing transfer and to the council's Housing Allocation Scheme (February 2023) policy. The claimant and her child required an out‑of‑area move to escape serious sexual abuse by a neighbour; the claimant applied for a reciprocal transfer under section 5.3 of the Policy and was refused on the basis that agreeing a reciprocal would rehouse her 'over 10 years out of turn'.

Nature of the claim / relief sought:

• The claimant sought quashing or a declaration that the relevant parts of the Policy were unlawful, quashing of the decision refusing the reciprocal transfer, and an order requiring Westminster to reconsider the claim and to treat the claimant as if she were a Westminster tenant (so she would be considered under the management transfer provisions of section 5.1).

Issues framed by the court:

• Whether the Policy (principally s5.3) indirectly discriminates against women contrary to ss 19 and 29 Equality Act 2010;
• Whether Westminster complied with its public sector equality duty under s149 Equality Act 2010;
• Whether the Policy and/or the particular decision breached the duties in the Children Act 2004 (s11) and the European Convention on Human Rights (Articles 8 and 14);
• Whether the council lawfully exercised its discretion under the Policy or unlawfully fettered it.

Court's reasoning and conclusions:

• The court identified material differences between s5.1 (management transfers for Westminster tenants) and s5.3 (reciprocals for non‑tenants), including allocation points, explicit references to threatened or actual violence, and the express statement in s5.3 that applicants will not be rehoused out of turn. Those differences mean s5.3 effectively imposes a residence requirement.
• Drawing on statistical and scheme evidence that persons who need to move borough to escape violence are disproportionately women, the court concluded s5.3 places women at a particular disadvantage and therefore is indirectly discriminatory under s19.
• The council produced no evidence to show it had considered the PSED when formulating or operating the Policy; the absence of any equality analysis or engagement with relevant statutory guidance meant Westminster had not complied with s149.
• Because the council advanced no justification evidence, the discriminatory effect could not be shown to be a proportionate means of achieving a legitimate aim and therefore was not justified.
• The court found a breach of s11 Children Act 2004 in the decision‑making: there was no evidence the decision maker took the child's particular needs into account when refusing the reciprocal transfer.
• The Article 8/14 arguments were not decided as unnecessary to the disposal of the claim.
• Remedies: a declaration that s5.3 is unlawful in its present form insofar as it affects women who need to move to escape violence; no quashing of the policy because the council could render it lawful by issuing guidance or providing justification; quashing of the individual decision in practice by ordering Westminster to reconsider the claimant's application treating her as if she were a Westminster tenant and to give reasons by 4pm on 30 April 2024.

The court also noted the distinction between temporary accommodation (which the council had offered and which remained separately challengeable) and the permanent re‑housing sought in this judicial review.

The claim succeeded in part. The court declared that section 5.3 of Westminster's Housing Allocation Scheme was indirectly discriminatory contrary to sections 19 and 29 of the Equality Act 2010 and held that Westminster had failed to comply with its public sector equality duty under section 149. The court also found the individual decision was unlawful for failure to have regard to the claimant's child under section 11 Children Act 2004. No Article 8/14 determination was made. Because the council might cure the unlawfulness by guidance or justification, the policy was not quashed; the council was ordered to reconsider the claimant's application treating her as if she were a Westminster tenant and to communicate a fresh decision by 4pm on 30 April 2024.