Offers of accommodation and the public sector equality duty

Michael Mullin and Scarlet Taylor-Waller analyse an important Court of Appeal ruling in a case where a council offered accommodation in Walsall to an appellant who had lived all her life in London.

The case of Webb-Harnden v London Borough of Waltham Forest [2023] EWCA Civ 992 was the second appeal from a review decision which upheld the suitability of a private rented sector offer in discharge of the Council’s duty under s.193 of the Housing Act 1996 (“the 96 Act”). The appeal concerned s.149 of the Equality Act 2010 (“the 2010 Act”) which requires public bodies when making decisions to have due regard to the need to eliminate discrimination and to advance equality of opportunity across the protected characteristics.

On 20 September 2021 the Council notified Ms Webb-Harnden, a single mother, that it had arranged an offer of an assured shorthold tenancy in Walsall. Ms Webb-Harden accepted that offer but requested a review of its suitability. On review, various representations were made by and on behalf of Ms Webb-Harden. The reviewing officer (“the RO”) took into consideration those representations and the relevant Council policy. The RO upheld the decision that the Walsall accommodation was suitable. The Council did not have any suitable three-bedroomed properties available in or near London and the appellant would in any event have been unable to afford such properties.

Ms Webb-Harden made a s.204 appeal to the county court. By a judgment dated 14 September 2022, Mr Recorder Midwinter KC dismissed the appeal. The Appellant then appealed to the Court of Appeal on one ground:

"The Respondent breached s. 149(1) of the Equality Act 2010 (the Public Sector Equality Duty ("PSED") by failing to consider the discriminatory impact of moving the Appellant and/or single parent (female) households out of borough due to being impacted by the benefits cap."

The Appellant accepted that the benefit cap was not in itself discriminatory, as found by the Supreme Court in R v (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449, but contended that the Council were using the benefit cap as a provision, criterion or practice to determine what accommodation would be suitable and this put women at a disadvantage. It was also argued that the Council could have decided to perform its s.193 duty by other means such as providing temporary accommodation which would not be subject to the benefit cap.

The Court of Appeal dismissed the appeal and unanimously held that the Council had due regard to the PSED and that its policy did not amount to the use of the benefit cap as a proxy.

A fair reading of the Council’s policy indicated that it did not use the fact that someone was subject to a benefit cap as a means of determining which accommodation would be offered. The Council was required by law to consider affordability as well as other various factors including disruption to employment, education and access to medical facilities. Recognition of the benefit cap was simply a part of the assessment of affordability when considering what accommodation could be offered whilst fulfilling the duty imposed by s.193(2) of the 1996 Act.

The s.149 duty is a question of substance not form. In this case the RO was well aware of the need to have regard and fulfilled the obligations imposed by s.149 of the 2010. This led the RO to the decision that the accommodation was reasonable and suitable. The Court also went on to say that even if there had been a breach it would not have made any difference. Once the Council had made the decision to use a private rented sector offer to bring the s.193 duty to an end it was required to consider affordability. Accommodation in Walsall was affordable and accommodation in London was not. That would not be altered by having due regard to the matters set out in s.149 of the 2010 Act. What Ms Webb-Harden was seeking was to use s.149 to achieve a substantive and different result. That is not the purpose of s.149 and it is for the Council to determine when and how to discharge its duty.

Michael Mullin and Scarlet Taylor-Waller are barristers at Five Paper. They successfully represented the Council and were instructed by Glenn Craig, Arandeep Hundal and Kim Travis of the London Borough of Waltham Forest.