Court of Appeal finds council had “due regard” to s149 Equality Act when offering accommodation in Walsall to single mother who had lived in London all her life

The Court of Appeal has dismissed a single mother’s appeal against a decision of a reviewing officer of the London Borough of Waltham Forest, finding that the accommodation offered to her was “reasonable and suitable”.

Lord Justice Lewis found that the reviewing officer “did have due regard” to the matters specified in section 149 of the Equality Act 2010 in deciding that the offer of accommodation was a “reasonable and suitable offer” and that the decision of the council to discharge its duty under section 193(2) of the Housing Act 1996 by arranging that offer was “lawful and correct”.

The Court of Appeal judge said the appellant was a single mother with three children who had lived in London all her life. She became unintentionally homeless and was in priority need.

The respondent council, the London Borough of Waltham Forest, arranged for an offer of an assured shorthold tenancy in the private sector with a fixed term of 24 months at a rent of £149.59 per week. The accommodation was in Walsall.

The council notified the appellant that if she accepted or rejected the offer, its duty under section 193(2) of the Housing Act 1996 would come to an end.

On 30 September 2021, the appellant requested a review of the offer of accommodation.

She explained in her request that she was a single mother with three young children (one a two-month old baby) who had lived all her life in Newham in London. Her family and friends lived there and her support network was there.

A reviewing officer upheld the decision to offer the appellant the accommodation in Walsall.

The reviewing officer’s conclusion was as follows:

“Based on all the information before me, I have concluded that the [Walsall] property offered to you …. to end the Council’s statutory duty towards you under section 193(2) of the Housing Act 1996 was a reasonable and suitable offer. I am also satisfied that the decision dated 20th September 2021 to end the Main Duty under section 193(2) of the Housing Act 1996 is one which is lawful and correct.”

Lord Justice Lewis said: “The reviewing officer considered that the respondent did not have a suitable three-bedroomed property available for the appellant and her family in or near London and, in any event, the appellant would have been unlikely to be able to afford a suitable property in or near London as she was subject to a cap, or limit, on the amount of welfare benefits she was able to receive.”

The appellant appealed to the county court. By a judgment given on 14 September 2022, Mr Recorder Midwinter KC dismissed the appeal.

Lord Justice Lewis said the appellant appealed with the permission of Arnold LJ on one ground, namely:

“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.””

Counsel for the appellant referred to the fact that a cap or limit was placed on the welfare benefits the appellant received.

The judge said: “That cap was currently £23,000 a year, having been reduced from £26,000 pursuant to the Benefit Cap (Housing Benefit and Universal Credit) (Amendment) Regulations 2016 made under section 8 of the Reform and Work Act 2016.”

Counsel for the appellant accepted that that limit or cap on benefits “did not itself involve discrimination”, but submitted that the benefits cap was being used “as a proxy, or practice”, to determine what accommodation would be suitable for individual applicants so that, where an applicant was subject to the benefits cap, the applicant was offered accommodation in Zone C (outside London or the neighbouring counties).

Lord Justice Lewis added: “That, Ms Monaghan submitted, amounted to a provision, criterion or practice which put women at a disadvantage and which the respondent might not be able to show was a proportionate means of achieving a legitimate aim and so might amount to indirect discrimination contrary to section 19 of the 2010 Act.”

Further, counsel for the appellant submitted that it was not open to the council to submit that the result would necessarily be the same even if the reviewing officer had had due regard to the matters referred to in section 149.

Counsel for Waltham Forest submitted that it was wrong to submit that the respondent used the benefit cap as a proxy for determining what accommodation was suitable. Rather, the appellant was offered accommodation following a “detailed assessment of her needs and consideration of what accommodation was available and what was affordable to the appellant”.

It was submitted that the council was entitled to discharge its duty under section 193(2) by securing the offer of a fixed term tenancy in the private sector and was not required to take other steps such as providing temporary accommodation or cash payments. The council already operated policies providing for prioritising particular households and those policies had not been found to be unlawful, it contended.

Discussing the case, Lord Justice Lewis said: “On an appeal in such cases, the focus is the decision of the reviewing officer rather than the decision of the county court.

“[…] The starting point is that the duty in section 149 of the Equality Act 2010 provides that a public authority must “in the exercise of its functions” have due regard to certain specified matters. It is sensible first to identify the particular functions that were being exercised in the present case. Here, the respondent was performing its duty under section 193(2) to secure that accommodation was available to the appellant and her children.”

Turning to the issue of the benefits cap, the judge said: “The premise upon which Ms Monaghan bases her submission is that the respondent’s policy used the fact that a person was subject to a cap on the benefits that he or she received as a proxy for determining whether the person would be allocated accommodation in Zone A or B (i.e. within London or the neighbouring counties) or Zone C (i.e. further away). That premise is, however, incorrect.”

He added: “A fair reading of the policy indicates that the respondent does not use the fact that someone is subject to a cap on benefits as a means of determining which accommodation should be offered. It is not the case that the respondent’s policy involves a crude allocation whereby people subject to the benefits cap are sent to areas away from London and others are not.

“Rather, read as a whole, the policy provides that the respondent will use offers of private sector tenancies as a means of fulfilling, and discharging, its duty under section 193(2).”

Lord Justice Lewis noted that the policy requires the council to have regard to whether a person can afford the accommodation offered, “as is required by law”.

He said: “Paragraph 3.14 of the policy, which is the only part of the policy about which specific criticism was made, simply makes the factual point that those in receipt of welfare benefits may be subject to restrictions which may affect their ability to pay rent.”

Turning to whether the reviewing officer did pay due regard to the matters set out in section 149, the Court of Appeal judge noted that the concerns of the appellant were that she had spent her whole life in the London area and, by arranging for accommodation in Walsall, she would be removed from her family, friends and support network.

On this issue, Lord Justice Lewis said: “In considering these matters, the reviewing officer was well aware of the need to have regard to the section 149 duty. She set out its terms and referred to it. She considered all the matters that the appellant and the solicitors relied upon in reaching her decision.

“[…] The reviewing officer considered the particular disadvantages that might affect the appellant if she, and her children, were provided with accommodation away from London and its neighbouring area. In the circumstances, however, the reviewing officer concluded, as she said in her decision letter, that the offer was “a reasonable and suitable offer” and the decision to discharge the duty under section 193(2) by making the offer was correct. In reaching that decision, the reviewing officer did fulfil the obligations imposed by section 149 of the 2010 Act.”

Considering the submission that the council could have decided to perform its duty by providing temporary accommodation, the judge noted that it was for the council to determine when to discharge its duty and, “in particular, whether to arrange for the offer a fixed term tenancy at a particular date rather than providing temporary accommodation with a view to seeing whether other suitable accommodation closer to the appellant’s previous home would become available.”

He concluded: “The respondent decided to arrange for an offer of private rented sector accommodation on 20 September 2021 which would have the effect of discharging the duty under section 193(2). There was no proper basis for concluding that it was required to make a different decision and to offer temporary accommodation, apparently for an indefinite period, leaving the section 193(2) duty undischarged.

“This was not a case where, realistically, other suitable accommodation was likely to become available such that the respondent should have considered whether it should not have discharged its duty immediately but should, rather, have provided temporary accommodation. […] There is no basis for considering that consideration of the matters specified in section 149 would have led to any other conclusion.”

Lord Justice Lewis later stated: “What the appellant is, in truth, seeking is a different result. She wishes to have the section 193(2) duty performed in a different way by the provision of temporary accommodation which is suitable in the short or medium term but which will not bring the duty to an end. She does not want the respondent to discharge its duty by arranging a private rented sector offer within the meaning of section 193(7AC).

“The reason why the appellant wants the section 193(2) duty to be performed in that way is that it will avoid the application of the benefit cap and enable her to be provided with temporary accommodation in London with the cost of the accommodation being paid for by the local housing authority.”

Lord Justice Lewis dismissed the appeal. Concluding the judgment, he said: “The reviewing officer did have due regard to the matters specified in section 149(1)(a) and (b) of the 2010 Act in deciding that the offer of accommodation in Walsall was a reasonable and suitable offer and that the decision of the respondent to discharge its duty under section 193(2) by arranging that offer was lawful and correct.

“In particular, the reviewing officer had due regard to the consequences to the appellant, and her family, of discharging the function under section 193(2) in the way that the respondent proposed.”

Lord Justice Arnold and Lady Justice Asplin agreed.

Lottie Winson