High Court finds Westminster housing policy indirectly discriminatory towards women needing to move to escape violence

A claimant has won a judicial review challenge in the High Court over Westminster City Council’s decision to refuse to agree to her request for a "reciprocal transfer" into accommodation in its area.

Simon Tinkler KC, sitting as a Deputy High Court judge, found that the relevant aspects of Westminster’s Housing Allocation Scheme February 2023 (the “Policy”) were indirectly discriminatory contrary to s19 and s29 Equality Act 2010.

The claimant lives in social housing bordering Westminster. While living in her current accommodation, her child was sexually abused by a neighbour who still lives next door to the claimant despite the abuse being discovered three years ago.

This had had “an incredibly traumatic effect on the claimant and her child,” the Deputy High Court judge had said.

He added that in order to avoid encountering this neighbour, the claimant's child had been living abroad with relatives whilst alternative safe and suitable accommodation is found.

However, her landlord has been unable to find safe and suitable accommodation in her borough.

“It is now over two years since the search for replacement accommodation started and her child moved abroad. Both the claimant and her child are suffering serious medical issues as consequence of the situation….. Before the move abroad the claimant's child spent time sleeping rough to avoid her previous housing, self-harming, taking drugs and has been excluded from school,” Mr Tinkler said.

The claimant and her child have close connections with Westminster. They lived there for a number of years when her child was at primary school, and she has a social network there.

The claimant therefore applied to Westminster for a "reciprocal transfer" under which Westminster would provide her accommodation and in return Westminster would have access to equivalent accommodation in her current borough for one of its tenants.

In June 2023 Westminster refused to agree to that request for a reciprocal transfer. In a letter to the claimant’s solicitors, the council said this was “due to the demand from priority groups and that by agreeing a reciprocal we would, based on current projections be rehousing [the Claimant] over 10 years out of turn”.

Westminster maintained that this refusal was in line with the Policy.

The claimant launched a legal challenge on the basis that the Policy treats people who are tenants in Westminster differently to people who live outside Westminster.

She said that the Policy itself was unlawful as it:

1. discriminated indirectly against women without proper justification contrary to s19 and thus s29 of the Equality Act 2010 (Ground 1 (a));
2. had not had due regard to the matters set out in, and had thus breached the public sector equality duty in s149 Equality Act 2010 ("PSED") (Ground 1(b)); and
3. violated Article 14 of the European Convention on Human Rights ("ECHR") when read with Article 8 of the ECHR (Ground 1(c)).

The claimant said Westminster had also breached its duty under s11 Children Act 2004 by failing to have regard to the need to safeguard and promote the interests of children (Ground 3).

She additionally challenged whether the decision was properly made in accordance with the Policy and/or established legal principles (Ground 4).

The claimant originally argued that the Policy and the decision were in breach of s10 Children Act 2004 (Ground 2). However, that argument was not pursued at the hearing.

The claimant requested that the court (a) quash the relevant parts of the Policy and/or declare them unlawful and (b) quash the decision and require the council to reconsider her application, and when doing so treat her as if she were a tenant of Westminster and/or award her the points that a tenant of Westminster would receive.

The claimant’s submissions included that people who need to move borough to escape violence / crisis are more likely to be women than men, and the policy was therefore indirectly discriminatory because it adversely affects a higher proportion of women than men.

It was also argued that the council had not shown that the indirect discrimination under the Policy was a proportionate means of achieving a legitimate aim.

Westminster raised in its defence that, like many local authorities, it has a very limited stock of housing available. It said it was unable to provide housing to everyone in Westminster who has a housing need.

It also told the court that although the claimant's position was extremely unfortunate, the Policy was lawful. It also said that it properly exercised its discretion in making the decision.

The claimant therefore had no valid claim against it, the council argued.

The Deputy High Court Judge concluded, however, that the relevant aspects of the Policy were indirectly discriminatory contrary to s19 and s29 Equality Act 2010. He said Westminster had not yet shown justification for this discrimination.

Mr Tinkler also said that Westminster had failed to comply with its PSED.

“The relevant sections of the Policy are therefore unlawful for both those reasons,” the judge said, adding that he did not need to decide whether the Policy was also in breach of the ECHR.

The judge declared that the relevant parts of the policy were unlawful.

However, he did not quash those sections “as there are means by which Westminster can make the Policy lawful which do not require it to be quashed”.

Mr Tinkler said Westminster must reconsider the application for a reciprocal transfer by 30th April 2024 and must treat the claimant on the same basis as a person who is a tenant of Westminster.

Harry Rodd