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By J
21/07/2009

Arm's length discrimination (or not)

Odham’s Walk Residents Management Ltd v Westminster City Council [2009] EWHC 1712 (Admin)  is not a housing case per se, but is of interest.

The applicant, a TMO, manages an estate of Westminster’s housing stock as Westminster’s agents under contract. The TMO employs caretakers who are provided with accommodation as part of the job.

The agreement under which the TMO manages the properties makes clear that it is the Council’s agent in doing so. The agreement also puts an equal opportunities duty on the TMO and compliance with statutory provisions including the Sex Discrimination Act 1975. However, staff were employed by the TMO not the Authority. The accommodation for the resident staff was, on the other hand, made available by the Authority to the TMO under licence for the specific purpose, which the TMO then sub-licenced to the employee.

Westminster subsequently adopted a  policy that the only accommodation that would henceforth be available to the TMO for such residential staff would be studio flats.

The TMO had an existing caretaker who, because of his family circumstances, needed a 3 bed. The Council refused to provide such a flat and would go no higher than a one bed. It also insisted that its policy would then have to be applied for all future employees.

The TMO applied for judicial review. Arguments on the irrationality of the policy, taking into account irrelevant factors and inadequate consultation were all rejected at permission stage as unarguable on the facts. However, the application was allowed to proceed on the basis of an argument on possible discrimination under Parts 2 and 3 Sex Discrimination Act 1975 (“SDA 1975”) because of its impact on residential staff with families.

The TMO argued that the policy was contrary to s.6 and s.30 SDA 1975 as indirectly discriminatory against women and married persons in both employment and housing. Reference was also made to s.76A SDA 1975 and the duty on all public authorities to have due regard to the need to eliminate unlawful discrimination and promote equality of opportunity between men and women.

Cranson J – with some hesitation – rejected these arguments. One had to have regard to the nature of the legal arrangements between the Council and the TMO (on the one hand) and the TMO and its employee (on the other). The Council did not employe the caretaker, nor did they house him. There was no legal relationship (whether as employer/employee or landlord/tenant) between the caretaker and the Council.

The impugned policy applied as between the Council and the TMO. It did not impact on the nature of the remuneration package (including accommodation) that the TMO could offer to prospective employees. It only limited the sort of accommodation that the Council would be obliged to provide to the TMO for these purposes. If the TMO wanted to arrange for accommodation for a prospective employee, then it could do so. If it wanted a larger property, however, it could not look to the Council to provide this.

That was sufficient do dispose of the application. The 1975 Act contemplated a direct relationship between the person doing the discrimination and the person being discriminated against.

[with thanks to NL for his initial work on this post. Any errors are, of course, the responsibility of J.]

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

1 Comment

  1. NL

    Interesting to compare this to EAT/0521/08/DA Leeds City Council v 1) Mr M Woodhouse 2) West North West Homes Leeds Ltd and Mr M Chapman

    http://www.insidehousing.co.uk/story.aspx?storycode=6504281

    where Leeds City Council were found to be responsible for the actions of an ALMO in the Employment Appeals Tribunal. I’m keeping an eye open for any appeal by Leeds…

    Reply

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