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By SW
16/05/2021

Nur v Birmingham (Part 2): some on the allocation scheme are more equal than others

This case, Nur & Ors, R (On the Application Of) v Birmingham City Council (2021) EWHC 1138 (Admin), is the second part of a decision concerning the housing allocations scheme in Birmingham, with the December 2020 decision covered here on Nearly Legal.  As NL‘s article shows, the judgment shines a light not only on the scheme, but on the approach to evidence and procedure Birmingham took when JR proceedings were brought.  It is not pretty. Judgment was given by David Lock QC, sitting as a Deputy Judge of the High Court. At the first hearing the Court reluctantly acknowledged that the grounds on indirect discrimination, breach of the Public Sector Equality Duty, failure to make reasonable adjustments under Equality Act 2010, and irrationality would have to be postponed because of Birmingham’s failure to file evidence.

Mrs Nur lives with her 3 adult daughters, including her daughter Zakiya Abudlahi, who has cerebral palsy and learning difficulties and for whom Mrs Nur is a full time carer.  Mrs Nur and Zakiya were living in the PRS when they registered on Birmingham Council’s Housing List in August 2011.  In late 2018 Mrs Nur’s landlord sought possession and an order for possession was made on 12 November 2018.  The Council accepted they had a homelessness duty towards the family on 22 November and they were granted a tenancy of a house owned by the Council at 89 Jervoise Road. Mrs Nur received that property following a homelessness offer, rather than as an allocation under the scheme.

The family was assessed as eligible for a 4 bedroom “Mobility 2” adapted property because of Zakiya’s disability.  It was common ground between the parties that 89 Jervoise Road would not be suitable to occupy long term because it was not adapted. After her solicitor made representations she was able to bid on both 3 bedroom and 4 bedroom properties.  From June 2019, Mrs Nur made a series of unsuccessful bids on 3 bedroom houses, adapted for a person with a Mobility 2 level of disability.  Birmingham did not submit any evidence as to why only adapted houses were available to bid for on the bidding cycle, rather than other types of accommodation.  Mrs Nur was unsuccessful after housing officers “skipped” her bids, for a range of reasons including her not being in a household with children under 18.

The December judgment at para 23 analysed the flawed way in which Birmingham interpreted its scheme. He considered how what was said to be “reasonable preference” given to families with children under 18 when bidding on houses, effectively became a blanket policy.  This meant that those such as Mrs Nur with dependent, but adult, children would have a vanishingly small chance of qualifying for an allocation of a house, because there was such demand for houses, and those households bidding for houses were likely to be living with younger children.

Para 8.1 of Birmingham’s scheme provided:

“The type of properties
To enable the best use of the Council and partner registered provider stock, properties will be allocated to those applicants who need that size and type of property.
As such, preference for houses with two or more bedrooms will be allocated to families with dependent children.
Sheltered housing and extra care accommodation will be allocated to older people.
Properties with adaptations will be allocated to persons with a physical or sensory disability”

  1. In the first judgment I set out the meaning of that policy. I held that, to an extent, the Council’s officers had misunderstood how decision making was required to be undertaken to give effect to the Policy, and thus to ensure that the Council complied with its duty under section 166A(14) of the Housing Act 1996 not to take decisions which departed from the Policy. The key part of that decision was that the Policy provided that Properties with adaptations were required to be allocated to persons with a physical or sensory disability as opposed to a house being allocated first to a family with children and only considered for a person with a physical or sensory disability if there were no families with children who were bidding for that property. I agreed with the Council’s submissions that the use of the word “preference” meant that households with children would have a preferential claim if they applied for a particular type of property, but it was inherent in that wording that the policy needed to be operated in a way which enabled that “preference” to be overridden by other factors. Whilst that submission was correct, the policy did not provide any guidance to housing officers to explain how other factors could outweigh the preference they were supposed to apply to households with children, and so houses were allocated to households with children over all other bidders, regardless of any factors which suggested that those other bidders had a more pressing need for the house.”

Mrs Nur submitted evidence from the Office for National Statistics, undisputed by Birmingham.  This showed that a higher proportion of disabled people live in social housing than non-disabled people, that disabled adults over the age of 24 are more likely to continue to live with their parents than non-disabled adults of the same age, and that disabled adults who have learning difficulties are much more likely to live with their parents than non-disabled adults.  The effect of this was that a disabled person is more likely to be living in a household without children than a non-disabled adult.

Birmingham also gave evidence that Mrs Nur would have been able to bid on non-adapted properties, and the Council would then have sought expert advice on whether it was possible to adapt them for her household’s use.  The judge rejected this evidence, and said it may have reflected the situation following the December judgment, but was not how the scheme operated at the relevant time.  It was also contrary to what Mrs Nur’s son had been told when he spoke to the Council about what type of properties the family could bid for.  There was no written document to refer to as to how these decisions were made, and what criteria should be applied when deciding to “skip” a bid.

Indirect Discrimination
It was agreed between the parties that the Council’s allocation scheme was a “provision, criteria or practice” to which s.19 of the Equality Act 2010 (EA 2010) applies.  This would make it discriminatory if the scheme put a household containing a person with disabilities at a disadvantage compared to a non-disabled household.  The judge identified the correct comparator as being a non-disabled household, some of which will have children under 18 and some will not..  Non-disabled households would have been able to bid for both adapted and non-adapted properties, which the judge found Mrs Nur could not.  Even if the Council’s evidence had been right on that point, and she could have applied for an adaptable, but not yet adapted, property, Mrs Nur was still at a particular disadvantage because she could only bid for properties capable of being adapted with any chance of success.  She had no way of knowing in advance which those were, there was no indication given on the website or anywhere else.  The judge found the provisions of the scheme constituted indirect discrimination, and although there was a legitimate aim in seeking to ensure access to outside space for children under 18, the means to achieve this were not proportionate, as required by s.19(2) of the EA 2010.

When it came to a finding on the irrationality ground the judge held that this did not add anything to the Claimant’s case and dismissed it, partly because the policy on allocation to households with under 18s was a legitimate aim, so could not be found to be Wednesbury unreasonable or perverse.

Pubic Sector Equality Duty
Although Mrs Nur’s counsel put the argument that the failure to monitor the implementation of the scheme breaches s.149 of the EA 2010 in her skeleton, they did not get the required permission from the Court to include it in their Amended Facts and Grounds.  The judge therefore did not allow it to be considered. Birmingham had agreed to review the allocations scheme, so it was not certain that the Court could have granted much by way of relief if this ground had been successful.

Reasonable Adjustments
The parties agreed that the Council had to make reasonable adjustments to the allocation scheme owing to the effect of s.20 of the EA 2010.  There was discussion about the statutory route to take, because s.20 does not impose obligations but attaches to those imposed by either Part 3 or Part 4 of the EA 2010.  Part 3 requires a proactive approach whereas Part 4 is a limited and solely reactive duty to make reasonable adjustments.  The judge excluded Part 4, which applies more broadly to providers of accommodation, and finds Part 3 is the correct route, which applies to those providing accommodation solely in the discharge of a public function.  He finds this consistent with the approach where more onerous obligations are placed on those discharging public functions, such as the PSED.  The Council’s failure to make any adjustments to meet the needs of disabled people put them in breach of their obligations. In terms of what would be a “reasonable adjustment” he mentioned exempting adapted properties from the policy so that they would not automatically be offered to households with young children, or awarding preference for adapted properties to disabled households.

Comment
This is an important judgment for those with disabilities, and shows the power of the equalities legislation.  As shown in the December judgment, the approach taken by Birmingham to evidence in this case, as well as to complying with the court rules in judicial review, comes across as quite self-destructive. The creation of the scheme itself was carefully considered, but the lack of monitoring after implementation in 2017 meant that there was no analysis as to the way in which the scheme was impacting on those with protected characteristics, and any other unintended consequences.  The unaccountable way in which bids were “skipped”, with no clear and consistent criteria, is also troubling.

 

 

W is a housing solicitor with a firm in south London

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