Katie-Leigh Webb-Harnden v London Borough of Waltham Forest (2023) EWCA Civ 992

This was the second appeal from a review decision upholding the suitability of an offer of a private sector tenancy in Walsall in discharge of Waltham Forest’s s.193 duty to Ms Webb-Harden. Ms Webb-Harden is a single mother with three children, who had lived in London all her life. She had become homeless from the termination of a private sector tenancy.

Ms W-H had accepted the offer of the tenancy but then sought a review of suitability. On review, various submissions were made – that her friends and family were all in London and that was where her support network was based. She also raised that she felt she had been treated unfairly because of the overall benefit cap, which made the rent for a property that had been available in Waltham Forest unaffordable.  She then instructed solicitors ho made further representations, including that

it had been held that the benefits cap “indirectly discriminated against women over men” (citing the Supreme Court decision in R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21, [2019] 1 WLR 3289). They stated that reliance on the benefits cap to justify placements was based on a discriminatory form of benefit and that the respondent’s policy of offering private sector tenancies described in paragraph 3.14 of its policy was tainted with illegality.

Para 3.14 of Waltham’s policy on use of private sector tenancies in discharge of duty, which included relative priorities for ‘in borough’, ‘in London’ and ‘out of London’ properties, stated

“Households in receipt of welfare benefits may be subject to restrictions on the amount of benefits they can receive, which may affect their ability to pay rent. Offers of accommodation in Waltham Forest or nearby boroughs are subject to affordable accommodation being available and the applicant being able to afford accommodation in those areas. If the benefit restrictions (cap) makes properties in Waltham Forest and London unaffordable then they will not be regarded as suitable.”

The solicitors further pointed out that if Ms W-H had been offered temporary accommodation, the housing benefit would not have been subject to the benefit cap, so it would have been affordable.

The review decision upheld suitability, concluding amongst other things that Ms W-H could not afford suitable accommodation in London, and there was only one 3 bed property available to Waltham, which was held for a family with higher priority.

A s.204 appeal was dismissed and Ms W-H appealed to the Court of Appeal. The ground of appeal that was allowed was that:

“The Respondent breached s. 149(1) of the Equality Act 2010 (the Public Sector Equality Duty (“PSED”) by failing to consider the discriminatory impact of moving the Appellant and/or single parent (female) households out of borough due to being impacted by the benefits cap.”

Ms W-H’s argument was that while the Supreme Court in DA had found that the discriminatory impact on women of the benefit cap was justified and so compatible with Article 14, what Waltham was doing was using the benefit cap as a practice or proxy to determine what accommodation was suitable “so that, where an applicant was subject to the benefits cap, the applicant was offered accommodation in Zone C (outside London or the neighbouring counties).”

This was a provision, criterion or practice which put women at a disadvantage and which Waltham had not shown could be justified as a proportionate means of reaching a legitimate aim. Therefore the reviewing officer had to show they had “had due regard to the need to eliminate discrimination (section 149(1)(a)) and to advance equality of opportunity (section 149(1)(b)). On the evidence, the respondent had failed to establish that the reviewing officer had done so.”

It was not the case that the result would necessarily be the same if this exercise were properly undertaken. Ms W-H could have been offered temporary accommodation, where the housing benefit would not be constrained by the benefit cap, or Waltham could have topped up rent with discretionary housing payments to make a London property affordable.

The Court of Appeal was not taken with this argument.

Para 3.14 of Waltham’s policy did not amount to using the benefit cap as a proxy.

Paragraph 3.14 of the policy (set out at paragraph 17 above), which is the only part of the policy about which specific criticism was made, simply makes the factual point that those in receipt of welfare benefits may be subject to restrictions which may affect their ability to pay rent. That is not using the benefits cap as a proxy for determining the accommodation that a person will be offered. It is a simple recognition of one factor, the affordability of the accommodation, in considering what accommodation to offer to a person in fulfilling the duty imposed by section 193(2) of the 1996 Act.

Whether the reviewing officer had had due regard to the Public Sector Equality Duty was a matter of substance, not form. In that, she clearly had had due regard

She considered all the matters that the appellant and the solicitors relied upon in reaching her decision. She considered the impact of moving to Walsall on the appellant and her family. She considered the effect of separation from family and support networks on the physical and mental health of the appellant and her children. She considered whether there were particular needs in terms of access to specialist medical facilities only available in London or whether the appellant carried out any caring responsibilities for family members in London. The reviewing officer assessed the affordability of the accommodation in Walsall and considered the extent to which the appellant would be able to travel to London to visit friends and family. In other words, the reviewing officer carefully considered, and formed a view, on all the disadvantages that were said to result from moving a person, such as the appellant who was a single mother with children, to accommodation away from London and its neighbouring area.

So there was no breach of the PSED. But even if there were, the situation would not be altered by having due regard to the PSED. The context in which the duty was to be carried out was Waltham’s decision to discharge its s.193 duty by a private sector offer. It was for Waltham to decide how to discharge its duty. Ms W-H contention that temporary accommodation could have been offered was contrary to the decisions in Alibkhiet v Brent London Borough Council (2018) EWCA Civ 2742 and Broderick v Bromley London Borough Council (2020) EWCA Civ 1522 (our note) that when to make a decision was a matter for the local authority and that

“the shortage of housing … is the constant backcloth against which all housing decisions are currently made”, the Council did not need to “wait in the Micawberish hope that ‘something will turn up’” and the Council “discharged its duty by inquiring what suitable accommodation was available at the time at which it made its offer”

Ms W-H was in effect seeking that Waltham make a different decision on how to perform its s.193 duty. But the application of the PSED was to how a function was discharged and the function here was the offer of a private sector tenancy. That could not be changed by the PSED.

Appeal dismissed

Comment

Although I am not happy to have to say it, this is probably right. The brute facts of unaffordability of London private sector tenancies generally (and not just London) and also the (pointless) harshness of the benefit cap will mean that there is no available suitable property to offer in the area. A policy that acknowledges these brute facts is not, per se, a practice that determines who will be offered what accommodation – the bare economics do that.

Nonetheless, judicial acknowledgement that this is the state we are in, where being shipped from London to Walsall is pretty much inevitable for single parent families is profoundly depressing.