Social Welfare Update: Discrimination arguments in homelessness appeals

Monday 28 October 2019

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The Appellant, Ms Adesotu, applied to the Respondent, Lewisham LBC, for homelessness assistance. Lewisham accepted that she was owed the main housing duty and made her an offer of accommodation. Ms Adesotu indicated that she wished to refuse the offer as it was too far from her children’s school and because she was too depressed to move. Lewisham responded by email to Ms Adesotu expressing the view that her reasons did not justify the refusal and that if she did not accept the property by the following week then the duty owed to her would be discharged. There followed a further exchange of communications between the parties. But Ms Adesotu would not agree to move into the property she had been offered and Lewisham treated this as a refusal, thereby ending the duty owed to her.

The decision to discharge the duty was upheld on review. On appeal to the county court Ms Adesotu sought to argue a number of grounds which sought to characterise Lewisham’s decision making process as discriminatory, under ss15 and 19 Equality Act 2010, on the basis that she was a disabled person (by virtue of a combination of mental health conditions) and that she should have been given more time to decide whether to accept or refuse the offer and to seek advice.

On Lewisham’s application, HHJ Luba QC struck out the relevant elements of the grounds of appeal. The county court, he held, had no jurisdiction to determine claims of unlawful discrimination under ss15 or 19 Equality Act 2010 in the context of an appeal under s204 Housing Act 1996, or to resolve the issues of fact that determination of such claims would entail. In addition, Ms Adesotu was – in effect – seeking to challenge Lewisham’s antecedent practice or policy of requiring homeless applicants to make a decision whether to refuse or accept accommodation within a 4-6 day period. This antecedent policy or practice could not, on the facts of this particular case, be characterised as a ‘point of law arising from’ the review decision for the purposes of s204(1):

‘…much influenced by the dictum in Panayiotou, I am satisfied that a reviewing officer is entitled (particularly in the absence of any contrary point having been expressly raised to treat any policy or practice of the council applied to the applicant by his/her own decision as lawful. As in all public law cases, there must be a presumption that a public authority behaves and has behaved lawfully (the presumption of regularity).’

The Court of Appeal dismissed Ms Adesotu’s appeal. In accordance with ss113-114 Equality Act 2010, proceedings alleging contraventions of Part 3 Equality Act 2010 (services and public functions) generally had to be brought by means of issuing a claim in the county court. An exception to this general rule was provided by s113(a) which allowed such matters to be raised in the context of a claim for judicial review. Appeals under s204 Housing Act 1996 do not fall within this exception. In addition, save for certain cases involving Art.8 ECHR, the county court lacked the jurisdiction in the s204 context to decide the disputes of fact which the resolution of complaints of discrimination would require.

The court also accepted that the grounds advanced by Ms Adesotu could not truly be characterised as matters arising from the review decision, as there had been no suggestion during the review process that there had been anything irregular about the earlier handling of her homelessness application. However, the court declined to express a view on the more general principle as to whether or not it was open to a homeless applicant to seek to challenge an antecedent policy or practice on an appeal under s204. See [35]-[37] per Bean LJ:

 

‘As the judge noted, there is some tension between the authorities relied on by each party on the question of whether a s 204 appellant can argue that an antecedent policy decision of the housing authority is unlawful in public law terms and that such unlawfulness infects the decision in the specific case. In Tachie v Welwyn Hatfield BC [2013] EWHC 3972 (QB); [2014] PTSR 662, Jay J held that the words "arising from" in s 204 were to be given a broad meaning and that "any ultra vires issue in the Anisminic sense" was therefore capable of being taken. On the other hand, in a postscript to his judgment in Panayiotou v Waltham Forest LBC [2017] EWCA Civ 1624; [2018] QB 1232 at 90 Lewison LJ, having referred to the decision in Tachie, said that he would not regard the point as by any means settled. He expressed his disquiet that such wide-ranging challenges to the actions of a local authority should be permitted in s 204 appeals to the County Court...

... I would not embark on resolving this controversy in the present case for the following reasons. Firstly, it is not necessary for the disposal of the appeal. Resolving it should wait for a case where it is or may be determinative. Second, I do not consider that this case is really about an antecedent policy at all. The only antecedent policy relied on is the one of requiring applicants to whom an offer has been made to accept or reject it within a matter of days. Even if – and it is a big "if" – this could somehow be regarded as unlawful, the Appellant then had another opportunity to accept or reject the property, and then a further opportunity after that to seek a review, in the course of which she received a "minded to discharge" letter to which she did not respond. The issues which remain to be resolved in the present case, when it returns to the County Court, are fact-specific. The antecedent policy question highlighted by Lewison LJ in Panayiotou should be resolved in a case where it really matters.’

Click here for the judgment: Adesotu v Lewisham LBC [2019] EWCA Civ 1405

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