Court of Appeal rejects appeal over sufficiency of inquiries made by housing options manager

The Court of Appeal has dismissed an appeal over the sufficiency of inquiries made by a borough council to determine the suitability of accommodation offered to a homeless applicant with 'protected characteristics' of disability and gender reassignment.

The background to the case of Biden v Waverley Borough Council [2022] EWCA Civ 442 was that the appellant, who was in a property under an assured shorthold tenancy, had been given notice to quit pursuant to s21 of the Housing Act 1988 in 2019.

She presented as homeless to Waverley Borough Council on 28 August 2019. On 20 November 2019, Waverley concluded the appellant was homeless and eligible for assistance and confirmed that it owed her a duty under s189B of the Housing Act 1996.

The appellant has the protected characteristics of gender reassignment, she is a trans woman, and is disabled, namely she suffers with osteoarthritis to the right knee, depression, and anxiety.

On 10 January 2020, Waverley made a 'final offer of accommodation' to the appellant of a ground floor self-contained flat in a purpose-built low-rise block let by an independent housing association managing a "range of affordable quality … flats to rent … to general needs applicants…". The flat was situated approximately 0.9 miles away from her present accommodation.

Initially, the appellant accepted the offer subject to a review of its suitability. In a letter dated 15 January 2020, her solicitors referred to her disability and that she was awaiting a knee replacement and was extremely limited in her mobility. She was dependent on public transport which she said was not easily accessible from the proposed address; her support network was in Wokingham, as was her GP's practice. She would be left "isolated and unable to carry out basic daily tasks."

On 29 January 2020 the appellant refused the offer of accommodation as unsuitable, nevertheless requesting the review to proceed. Consequently, on 30 January 2020, Waverley wrote to her pursuant to section 193A discharging its duty under section 189B of the Housing Act 1996. The appellant requested a review of that decision also.

The appellant’s solicitors made further representations in a letter dated 20 May 2020, this time referring specifically to her gender reassignment and the fact that she had "been the victim of many incidents which have left her frightened and concerned to be in remote unfamiliar areas." It was said to be clear that the property offered was not suitable for her physical and mental health needs and "her protected characteristic under the equality act [sic] has clearly not been considered."

The review of both decisions was conducted by a housing options manager for Waverley. The manager interviewed the appellant on 1 June 2020 and had regard to her solicitor's representations. She also made inquiries of a police support community officer (PCSO) and a GP's practice local to the designated address, regarding transgender issues raised by the appellant. The manager also had access to several medical reports.

Considering all the available information the housing options manager said in her review of 18 August 2020 that she was satisfied that the final offer of accommodation was suitable for the appellant on all grounds.

The manager concluded she was "satisfied that there is no deficiency or irregularity in the original decision or in the manner in which it was made. … that there is no need to serve a "minded to find" notice on [the appellant]".

The reasons put forward for refusing the 'final offer' of accommodation were not considered so significant as to render the final offer unsuitable. The manager was also satisfied that Waverley had notified the appellant of the consequences of refusal and the right to seek review and therefore its duty to relieve her homelessness had come to an end.

Her Honour Judge Nisa dismissed an appeal on 3 August 2021. The appellant appealed.

Lady Justice Macur said that the issue which the Court of Appeal had to decide to determine the appeal was “a very narrow one, namely: should [the housing options manager] have made the inquiries she deemed necessary on matters relating to the incidence of gender reassignment hate crime in the area of the accommodation offered to [the appellant] of a Lesbian, Gay, Bisexual, Transgender (LGBT) liaison officer rather than the PCSO?”

The Court of Appeal judge noted that the College of Policing 2014 Hate Crime Operational Guidance recognised that transgender hate crime was vastly under-reported. It was noted that some transgender people may fear ridicule and victimisation from police officers and consequently lacked confidence to report hate crimes or incidents or present themselves as witnesses.

The operational guidance also noted that several initiatives had proved effective and "may be appropriate to use in the transgender community". Specifically, many police forces had introduced LGBT officers with specific responsibility for building community links and providing support for victims and witnesses of transgender hate crime. The liaison officers provide a "specialist advice point for other officers".

However, noting that most interaction between the police and the transgender community was with other police officers and staff, "awareness training on transgender issues, as part of the wider diversity training" was necessary. The correct identification of transgender hate crimes or incidents separately from homophobic crimes or incidents on command-and-control systems would assist to build accurate crime and intelligence reports.

Lady Justice Macur said the significance of the guidance and information was readily apparent, and in the instant case, was corroborated by the specific information provided by the appellant of her own victimisation as a trans woman and who claims an expertise beyond that of her own ‘lived experience’.

“However, assuming for the sake of argument that the LGBT officer had a better appreciation of the problems facing the transgender community in general, I find it difficult to understand the argument that an unidentified ‘Surrey Police’ LGBT liaison officer would have greater knowledge of the situation on the ground than would the local PCSO.”

Counsel for the appellant argued that the LGBT officer's "immersion" into the transgender community would give him/her inside knowledge of the incidence of unreported hate crimes throughout the force region wherever he/she was based.

Lady Justice Macur said she did not accept that argument. “I agree with Mr Rutledge QC [counsel for Waverley], that it is entirely speculative to assume that the PCSO had not received awareness training on transgender issues and/or did not liaise with the LGBT liaison officer, or that the LGBT liaison officer, if approached directly by [the housing options manager], would not have liaised with the PCSO.”

The Court of Appeal judge added that “notably”, the statement that was produced by the appellant contained no additional evidence from the Surrey LGBT officer that contradicted the information provided by the PCSO, and nor was it claimed that the information provided by the LGBT liaison officer would have been different. “The highest that Mr Straker [counsel for the appellant] puts it is that the making of such inquiries would engender confidence in the process. That hopefully is a by-product but is not the purpose of the review procedure.”

Lady Justice Macur said the inquiries that were required to be made were those necessary fairly to make a decision regarding the suitability of accommodation for the appellant; see Codona v Mid-Bedfordshire District Council [2005] EWCA Civ 925, at [33]. Subject to this, the "scope and scale" of the necessary inquiries to be made by a local housing authority was a matter for them and the Court of Appeal should not intervene unless satisfied that no reasonable housing authority could have been satisfied on the basis of the inquiries made.

Lady Justice Macur said the attempt to compare the circumstances in the appellant's case with the situation in Pieretti v Enfield LBC [2010] EWCA Civ 1104) was “entirely misguided and contrived”.

In Pieretti the reviewing officer was held to be at fault for failing to make further inquiry in relation to "some such feature of the evidence presented to her as raised a real possibility that the applicant was disabled" and lacking in awareness "that a disabled person may not be adept at proclaiming his disability" whereas the duty created by the Disability Discrimination Act 1995, a predecessor of the EA 2010, was "designed to secure the brighter illumination of a person's disability so that, to the extent that it bears upon his rights under other laws, it attracts a full appraisal”.

Lady Justice Macur noted however that, at paragraph 33 in Piereti, Wilson LJ (as he then was) made clear that "the law does not require that in every case decision-makers under section 184 and section 202 must take (active) steps to inquire into whether the person to be subject to the decision is disabled and, if so, is disabled in a way relevant to the decision. That would be absurd."

Lady Justice Macur said she regarded it as “absurd” to suggest that the housing options manager’s failure to expand the scope of her inquiries to involve the LGBT liaison officer reflected her failure to have due regard to the protected characteristic of gender reassignment, whether stand alone or in conjunction with the appellant’s disability.

“As it was, she proceeded in her review on the basis that [the appellant] might be physically confronted by transphobic individuals and would be at a disadvantage in removing herself. I do not see how this can be categorised as lack of awareness or diligence in making her inquiries,” the Court of Appeal judge said.

“Neither do I see that there is a valid comparison to be drawn with the fact specific situation which occurred in Shala v Birmingham City Council (2007) EWCA Civ 624 in which it was made clear that housing officers do not have the relevant expertise upon which to make a critical evaluation of the evidence and must seek relevant expertise. The position of a LGBT liaison officer and PCSO is not remotely akin to the respective position of a patient's treating psychiatrist as against a medical adviser without full recourse to the relevant medical reports.”

Lady Justice Macur rejected the implicit submission that no reasonable reviewing officer could have determined the inquiries to be sufficient, nor would she have categorised them as in any sense inadequate upon which to make a fair and composite assessment of the suitability of the accommodation offered.

The Court of Appeal judge said there was no disagreement that the public sector equality duty applied to a local housing authority's discharge of homelessness functions nor that the principles to be drawn from the several authorities do not accommodate the consideration of multiple protected characteristics.

“However, there is floated, albeit I detect with some diffidence, the submission that gender reassignment as a protected characteristic creates a heightened duty on the part of the housing authority, quite apart from the consideration of whether it is necessary to offer more favourable treatment to applicants with any other protected characteristics such as race, disability, age etc.”

The Court of Appeal judge agreed with Waverley’s counsel that there was no statutory basis for such a contention. “Any enhanced or modified statutory protections which do exist are expressly stated in EA 2010 and are limited to specific circumstances, for example, the discrimination provisions unique to pregnancy and maternity. There is no corresponding provision which relates to the protected characteristic of gender reassignment.

“Neither do I see that the principles to be extracted from any of the authorities supports the same.”

Lady Justice Macur said that the housing options manager had recognised the nature of the appellant’s protected characteristics. “She focused upon the consequences of [the appeallant]'s disability in so far as it was relevant to her occupation of the accommodation offered to her in terms of lay out and access to current GP practice and support networks. She had regard to the disadvantages created by the 0.9-mile difference in location between the accommodation offered and that presently occupied by [the appellant]….. She identified the difference between [the appellant] and a transgender individual without disability, or a disabled individual who was not transgender….. She had due regard to the possibility of victimisation….. The selection of accommodation had borne in mind that private landlords may positively discriminate against transgender individuals….. This is capable of being regarded as more favourable treatment of [the appellant’s] application.”

The Court of Appeal judge said she regarded any attempt to categorise the inquiries made by the housing options manager as displaying a disregard for the PSED as “hopeless”.

The manager had had 'very sharp focus' to [the appellant’s] circumstances, Lady Justice Macur said. “She made a composite assessment, alive to [the appellant’s]  protected characteristics, individually and in combination, and placed in the context of all other statutory guidance. [The housing options manager] made relevant and reasonable inquiries of appropriate agencies, having regard to the concerns raised by [the appellant]. Despite that advice, she nevertheless contemplated the possibility of the existence of transphobic abuse. The requirement to consider whether it was necessary to treat [the appellant]]  "more favourably" did not require [the housing options manager] to achieve a perfect match, nor did it require her to further [the appellant’s] express wish to relocate to Brighton.”

Lady Justice Macur noted that the appellant’s QC had freely conceded on her behalf, that the housing options manager’s review was "highly competent" and "alive" to critical factors of proximity to [the appellant’s] present address, restricted mobility, access to medical care, and general and specific safety concerns arising from her protected characteristics. “It seems to me, therefore that he is left with very little room for manoeuvre.”

Asplin LJ and Coulson LJ agreed.