A couple of quick notes on cases that have been sitting a browser tabs in my ‘to do’ window for far too long…

Daff v Gyalui & Aiach-Cohen (2023) UKUT 134 (LC)

Ms Daff had been ordered to pay an RRO for an unlicensed property to the tenants in the amount of £22,230, being 100% of rent for 9 months. The UT allowed an appeal. The FTT had not had regard to the (limited) evidence as to the landlord’s means put forward by Ms Daff in the bundle, which showed limited income and capital. Ms D was living in Australia when the selective licensing scheme was introduced, and this was the first occasion she had let a property herself rather than through agents. She had not sought to deliberately evade her responsibilities. Any characterisation as a ‘professional landlord’ should be resisted as threshold to a different level of penalty. What mattered were the specific facts,

There were no issues of conduct to be taken into account.

The circumstances of this case are exceptional in that the appellant is a person of limited means and no earning power, whose very poor health has contributed to her lack of attentiveness to her licensing obligations. She is in a precarious financial position. In my judgment the achievement of the statutory objectives of punishing defaulters and deterring future offences does not require the imposition of disproportionate penalties. I take that into account in determining that, in this case, the appropriate rent repayment order is one of £2,000.

Rent repayment orders are not intended to be compensatory, but are a windfall bestowed in addition to any other remedies to which a tenant may be entitled. They are a blunt instrument which cannot be wielded with much subtlety or precision, and I therefore do not think it is necessary in this case that the modest sum to be repaid should be split in proportion to the relative contributions of the two respondents to the monthly rent (one paid approximately twice as much as the other).

TX, R (On the Application Of) v Adur District Council (2022) EWHC 3340 (Admin)

Adur’s allocation policy provided that only those resident in the borough for the last two years could join the housing register.

At 3.3.3 (d) of the policy, there was this exception:

d) People who do not live in Adur but live in accommodation that is not suitable for their housing needs, and have a local connection to Adur District Council as defined in Section 22 of this Policy, and who have an overriding proven need to move to the Adur area, and there is accommodation likely to become available in Adur that is suitable to meet their housing needs (people who qualify in this category will not take priority over people who already live in the area so will only be assessed in Band C or D and will not qualify to be in Band A or B). People wanting to move to receive or give support to immediate family members must demonstrate the levels of support that will be provided and why this cannot be provided in their current accommodation.

Local connection was defined as

ordinarily resident in the Defendant’s area for 6 out of the last 12 months, or 3 years out of the last 5 years, or those who have family members who have lived in the Defendant’s area for 5 years.

Ms TX was the tenant of a property in Brighton, but had family in the defendant’s area. She fled the Brighton property due to domestic abuse. Adur accepted a homeless duty, but gave her Band C priority (later changed to band D, but that is subject to separate proceedings), relying on 3.3.3 (d) of the policy.

Ms XC brought a judicial review alleging that the allocation policy was unlawful by reason of indirect discrimination on grounds of sex, as most people fleeing domestic abuse in another area, and caught by 3.3.3(d) limiting priority banding to C or D would be women.

Adur argued that Ms XC had actually been given a perk due to the rehousing need through domestic abuse, as she would not otherwise have qualified for the housing register at all.

The High Court did not agree.

Another argument relied upon by the Defendant is that the Claimant has been given preferential treatment. According to this line of argument, the Claimant has been treated preferentially as she has been exempted from the residency requirement and has been allowed on to the register as an exception to the normal rule. She has also been treated preferentially when compared to others, who currently live outside the Defendant’s district, but wish to move to the area. In other words, rather than being at a disadvantage, the Claimant has an advantage over others.

I reject this argument. I accept the submission, made by Mr Johnson, that advantage in some other respect, does not remedy indirect discrimination. All allocation policies are unequal and as observed by Garnham J in R v XC Southwark (2017) EWHC 736 (Admin): “Every tweak to the scheme to benefit one individual or one class of applicant is likely to have an adverse effect on another…”. At most the ‘advantage’ argument might go to justification.

There was no dispute that the policy amounted to a PCP for the purposes of the Equality Act 2010. And:

In my judgment, it is perfectly plain that the effect of 3.3.3(d) is to indirectly discriminate against women fleeing to the Defendant’s area, due to domestic abuse. Paragraph 3.3.3(d) appears to be a neutral provision, in that it applies to everyone, but women are put at a disadvantage when compared to men, as they are significantly more likely to be the victims of domestic abuse and, as a result, have to move to another area. The Claimant returned to live in the Defendant’s area because she was fleeing domestic abuse from another local authority area. This leads to a particular disadvantage because the Claimant, notwithstanding that she is entitled to a reasonable preference because she is owed the main housing duty under section 193(2) of the Act, is limited to Bands C or D and therefore less likely to obtain an allocation of social housing. I am satisfied that the Claimant has established a sufficient causal link between her protected characteristic of sex and the application of the qualification criteria.

The question then was whether the indirect discrimination could be justified.

Adur’s argument on justification was a variation on the usual ‘we’ve got no houses, and giving this class of people an advantage would disadvantage others’ line.

She addressed the court with regards to the absence of a right to a house and “absolute access” to the scheme, the severe shortage of social housing in the Defendant’s area, the Claimant’s tenancy, and the power to include localism provisions to ensure that housing goes primarily to those with the greatest connection to the district. In support of her submission, Ms Rowlands relied on the statistics in the witness statement of Ms Miranda Butler – Accommodation Team Leader for Housing Needs for the Defendant’s area and Worthing Borough Council, dated 17 August 2022. Ms Butler stated that as of 16 August 2022, on the Defendant’s register, there were 369 applicants for a one-bedroom property and in 2021-2022 only 13 such properties were let through the register, other than sheltered housing. Ms Rowlands also submitted that the Claimant’s entitlement to a reasonable preference does not mean that she must have priority. To prioritise the Claimant, would potentially have a huge impact on the other people on the waiting list for housing. In addition, the court should be slow to intervene as the Defendant is best placed to prioritise housing needs in its area.

However, none of this went to show that Adur had specifically considered the impact on women fleeing domestic abuse and conducted an assessment of proportionality of the policy. So the policy was not, as yet, justified.

The decision was quashed and a declaration made that the Allocation policy discriminated unlawfully and had not been justified.