Biden v Waverley Borough Council (2022) EWCA Civ 442

An interesting Court of Appeal decision on the sufficiency of enquiries to establish suitability of accommodation offered in discharge of section 189B Housing Act 1986 duty where the homeless person has the protected characteristics of disability and gender reassignment.

Ms Biden had been made homeless from an assured shorthold tenancy in Farnham. “She has family and a “wider support network” in the Wokingham area where she once lived. She moved to her present address fearing the adverse attentions of her wife’s family who lived in and around Wokingham.”

Waverly BC accepted the s.198B duty. In January 2020, the council made an offer of a ground floor flat about 0.9 miles from her accommodation in Farnham. Ms B did not accept the offer and asked for a review of suitability under s.202.

On review, Ms B submitted that the property was unsuitable, as:

First, distance from local amenities and ability to access public transport by reason of her limited mobility which would mean that Mrs Biden would be “isolated and unable to carry out basic daily tasks.” Second, distance from her existing GP practice and support network in the Wokingham area which were necessary in light of her mental health issues. Third, Mrs Biden’s perception that she was unsafe in a remote and unfamiliar area, bearing in mind her personal details being published on the internet and given mental health considerations and absent a support network. Fourth, lack of consideration of Mrs Biden’s protected characteristic of gender reassignment, who as the victim of “many incidents” had left her frightened and concerned to be in remote and unfamiliar areas. Finally, suitability of the accommodation which was in a block of flats normally provided to single mothers and children.

The review officer, so far as is relevant to this appeal, made inquiries “of a police support community officer (“PCSO”) and a GP’s practice local to the designated address, regarding transgender issues raised by Mrs Biden.”

The review decision noted that Ms B is

“a transwoman and (has) gender dysphoria … a term that describes a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity. The sense of unease … can lead to depression and anxiety and have a harmful impact on daily life… you suffer from depression and anxiety.” She noted Mrs Biden’s progress on the sex reassignment surgery pathway since 2008 and that “(y)ou say you feel anxious and concerned to be in unfamiliar or remote areas due to incidents you have previously experienced. Trans-people tend to feel anxious when out in the community due to concern about being victimised by wider society because they are a trans-person.”

The review decision found

Ms Donaldson’s inquiries of the PCSO revealed that reported crime in the relevant area was low, with violent crime and threats of violence “almost non-existent. There is no evidence of LGBT+ hate crime in the area…he was not aware of any individual harboring (sic) any grudges towards any member of the LGBT + community. He advised that it would be safe for a transwoman to move into (the street) and he would have no concerns for her safety in the surrounding area.” The policing issues and crime levels in the area in which Mrs Biden presently resided and that in which the designated property was situated were equivalent as may be expected since they are within 0.9 miles from each other.

Ms Donaldson said that she understood that Mrs Biden had been the victim of incidents which left her feeling self-conscious, frightened, and concerned of being in remote and unfamiliar areas. However, the accommodation offered to Mrs Biden is not situated in a remote area but in a well-maintained residential area with which she would readily be able to familiarise herself prior to moving. Therefore, there was no evidence to substantiate any fears of risk in the area. If Mrs Biden felt her mental health to be deteriorating, she was competent to consult with her GP. Ms Donaldson noted that “any concerns, fears, or worries you had, were not sufficient to deter you from considering a move to Brighton in June 2020” where Mrs Biden’s wife and child were planning to move.

The offered tenancy was with a social landlord and the flat was secure.

The suitability of the offer was upheld.

A s.204 appeal was unsuccessful, and Ms B brought a second appeal to the Court of Appeal.

The issue on appeal was should the review officer “have made the inquiries she deemed necessary on matters relating to the incidence of gender reassignment hate crime in the area of the accommodation offered to Mrs Biden of a Lesbian, Gay, Bisexual, Transgender (LGBT) liaison officer rather than the PCSO?”, and was the failure to make inquiries of an LGBT liaison officer a breach of the Public Sector Equality duty?

MS B argued that an LGBT liaison officer would have “inside knowledge of the incidence of unreported hate crimes throughout the force region wherever he/she was based”, and that this was important as trans hate crime incidents were significantly under reported according to the College of Policing 2014 Hate Crime Operational Guidance and the Stonewall ‘LGBT in Britain Trans Report’of 2018.

The Court of Appeal did not accept this as a failure of enquiries, noting

Notably, the statement that was produced by Mrs Biden (…), contains no additional evidence from the Surrey LGBT officer that contradicts the information provided by the PCSO, and nor is it claimed that the information provided by the LGBT liaison officer would have been different. The highest that Mr Straker puts it is that the making of such inquiries would engender confidence in the process. That hopefully is a by-product but is not the purpose of the review procedure.

The enquiries required to be made were those that were necessary fairly to make a decision as to the suitability of the property, Codona v Mid-Bedfordshire District Council (2005) EWCA Civ 925. It could not be said in this case that the enquiries made were such that no reasonable housing authority could have been satisfied as to their scope and scale, R v Royal Borough of Kensington and Chelsea, ex p Bayani (1990) 22 H.L.R. 406.

I regard it as absurd to suggest that Ms Donaldson’s failure to expand the scope of her inquiries to involve the LGBT liaison officer reflects her failure to have due regard to the protected characteristic of gender reassignment, whether stand alone or in conjunction with Mrs Biden’s disability. As it was, she proceeded in her review on the basis that Mrs Biden might be physically confronted by transphobic individuals and would be at a disadvantage in removing herself. I do not see how this can be categorised as lack of awareness or diligence in making her inquiries.

Neither do I see that there is a valid comparison to be drawn with the fact specific situation which occurred in Shala v Birmingham City Council (2007) EWCA Civ 624 in which it was made clear that housing officers do not have the relevant expertise upon which to make a critical evaluation of the evidence and must seek relevant expertise. The position of a LGBT liaison officer and PCSO is not remotely akin to the respective position of a patient’s treating psychiatrist as against a medical adviser without full recourse to the relevant medical reports.

I reject the implicit submission that no reasonable reviewing officer could have determined the inquiries to be sufficient, nor would I categorise them as in any sense inadequate upon which to make a fair and composite assessment of the suitability of the accommodation offered.

As to the PSED point, the Court of Appeal considered that the duty had been fulfilled.

There is no disagreement that the PSED applies to a local housing authority’s discharge of homelessness functions nor that the principles to be drawn from the several authorities, to which I refer below, do not accommodate the consideration of multiple protected characteristics. However, there is floated, albeit I detect with some diffidence, the submission that gender reassignment as a protected characteristic creates a heightened duty on the part of the housing authority, quite apart from the consideration of whether it is necessary to offer more favourable treatment to applicants with any other protected characteristics such as race, disability, age etc.

There is, as Mr Rutledge makes clear, no statutory basis for such a contention. Any enhanced or modified statutory protections which do exist are expressly stated in EA 2010 and are limited to specific circumstances, for example, the discrimination provisions unique to pregnancy and maternity. There is no corresponding provision which relates to the protected characteristic of gender reassignment.

As to the review decision and the required exercise of the duty with rigour and with an open mind:

Ms Donaldson recognised the nature of Mrs Biden’s protected characteristics; (…). She focused upon the consequences of Mrs Biden’s disability in so far as it was relevant to her occupation of the accommodation offered to her in terms of lay out and access to current GP practice and support networks. She had regard to the disadvantages created by the 0.9-mile difference in location between the accommodation offered and that presently occupied by Mrs Biden; (…). She identified the difference between Mrs Biden and a transgender individual without disability, or a disabled individual who was not transgender; (…). She had due regard to the possibility of victimisation; (…). The selection of accommodation had borne in mind that private landlords may positively discriminate against transgender individuals; (…). This is capable of being regarded as more favourable treatment of Mrs Biden’s application.

I regard any attempt to categorise the inquiries made by Ms Donaldson as displaying a disregard for the PSED as hopeless. Ms Donaldson gave ‘very sharp focus’ to Mrs Biden’s circumstances. She made a composite assessment, alive to Mrs Biden’s protected characteristics, individually and in combination, and placed in the context of all other statutory guidance. Ms Donaldson made relevant and reasonable inquiries of appropriate agencies, having regard to the concerns raised by Mrs Biden. Despite that advice, she nevertheless contemplated the possibility of the existence of transphobic abuse. The requirement to consider whether it was necessary to treat Mrs Biden “more favourably” did not require Ms Donaldson to achieve a perfect match, nor did it require her to further Mrs Biden’s express wish to relocate to Brighton.

Appeal dismissed.