High Court finds Local Authority's housing policy to be discriminatory against women and girls escaping violence in successful judicial review challenge

Wednesday 10 April 2024

Stephanie Harrison KC and Nadia O’Mara of the Garden Court Public Law Team successfully acted for the Claimant, instructed by Public Interest Law Centre. Our Franck Magennis was previously instructed as junior counsel.

See judgment: AK v Westminster City Council [2024] EWHC 769 (Admin)

Press coverage in Local Government Lawyer.

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The High Court has held that part of Westminster City Council’s Housing Allocation Scheme is unlawful, as it indirectly discriminates against women and girls who need to move borough to escape violence.

The Court also held that Westminster had breached the Public Sector Equality Duty (‘PSED’) under s. 149 Equality Act 2010 and its duty under section 11 Children Act 2004.

The Claimant lives in social housing in a neighbouring London borough. After experiencing periods of homelessness, she now holds an assured lifelong tenancy with a housing association.

Her child was sexually abused by a neighbour. The abuse was discovered in 2021, but the perpetrator still lives next door to the Claimant. Since discovering the abuse, the Claimant has been trying desperately to find alternative housing.  

The abuse had an incredibly traumatic effect on the Claimant’s child, resulting in exclusion from school, drug use, self-harm, and a period of homelessness.

To avoid encountering the neighbour and further compounding the trauma, the Claimant made the difficult decision to send her child abroad to stay with relatives whilst alternative safe and suitable accommodation was found. The Claimant and her child have now been separated for almost three years.

Amongst the Claimant’s efforts to resolve the housing issue was an application to Westminster City Council for a reciprocal transfer under the Housing Allocation Scheme (whereby Westminster would provide her with accommodation and in return, Westminster would have access to accommodation in a different borough). This step was taken after her housing association was unable to source safe and suitable alternative accommodation for her and her child.

After a lengthy delay, that application was refused. The reasoning was brief – in effect it was said that the Claimant could not be permitted to ‘queue jump’ other applicants in priority groups.

The Claimant challenged the decision and the policy by way of judicial review, arguing that it indirectly discriminated against women and girls, by treating existing social tenants of Westminster differently to tenants who live outside the borough.

If the Claimant was an existing tenant of Westminster, she would have benefited from more favourable ‘management transfer’ provisions within the policy. This had a disproportionate, and therefore indirectly discriminatory, impact on women and girls as the group are statistically far more likely to need to move borough to flee violence.

The Claimant relied upon evidence – including from the Pan-London Housing Reciprocal Scheme – which shows that almost 9 out of 10 applicants under that scheme are women, and 63% of those were fleeing some form of violence against women and girls (‘VAWG’).

Westminster for its part filed no evidence whatsoever to justify its policy. Even though the policy had been in place in some form since the 1990s (and was regularly reviewed), Westminster could “find no evidence” that the Council had considered equalities issues.  

The Court agreed with the Claimant and held that the relevant aspects of Westminster’s policy are indirectly discriminatory contrary to ss. 19 and 29 of the Equality Act 2010, and that Westminster had not yet shown justification for the discrimination.

The Court further held that Westminster had failed to comply with its PSED, finding that:

“If Westminster had considered its PSED on any of the multiple occasions in recent years in which guidance had been issued centrally or when Westminster reviewed its policy then it would have evidence of such consideration readily to hand. It has failed to provide any such evidence” [33].

The Court also found that Westminster failed to comply with its duty to ensure its functions are discharged having regard to the need to safeguard and promote the welfare of children, contrary to s. 11 Children Act 2004.

Having considered whether to quash the policy, the Court decided that there were routes other than wholesale replacement by which Westminster could make its policy lawful, and instead decided that a declaration of current unlawfulness is sufficient.

The Court did however quash the individual decision, and ordered that Westminster reconsider the Claimant’s application, treating her as though she were an applicant under the more favourable provisions of the policy within 28 days.

Westminster has agreed to undertake a review of its policy and provided a timeframe for compliance with the PSED.

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