Willott, R (On the Application Of) v Eastbourne Borough Council (2024) EWHC 113 (Admin)

A judicial review of Eastbourne’s allocation policy and of Eastbourne’s decision to exclude Ms Willott from joining the housing register on grounds of ‘serious anti social behaviour’.

Ms W had had a secure tenancy from Eastbourne. In 2019 the council brought possession proceedings based on what were alleged to be at least 40 instances of ASB by Ms W or those in the house. There had been an attempt at an acceptable behaviour contract and an injunction regarding dogs.. Ms W’s children were put in the permanent care of their father in 2020.

Ms W was assessed during this period as having an autistic spectrum condition and adult ADHD

At a hearing in 2020, a DDJ refused a possession order on the basis that Eastbourne had not discharged its public sector equality duty. Eastbourne appealed. Shortly after this point Ms W applied to join the housing register and was refused, citing the allocation policy which said, under those not qualifying

d) Applicants whose anti-social behaviour (ASB) is serious enough to make them unsuitable to be a tenant (“the ASB policy”)’

The description of ‘serious enough’ ASB included

Behaviour which can be regarded as unacceptable for these purposes includes behaviour by the Applicant or by a member of their household that would – if the Applicant had been a Council tenant at the time – have entitled the Council to a possession order under certain grounds contained in the Housing Act 1985.

In 2021, on appeal, an order for possession was granted, with the District Judge being found to be wrong that Eastbourne had not complied with the PSED.

Ms W applied as homeless from her father’s home, due to bail conditions, and was placed in temporary accommodation. A review of the housing register decision was sought, which upheld the decision and the present judicial review issued.

Ms W argued:

i) that the ASB policy was a blanket policy which was a fetter on discretion.
ii) the policy amounted to indirect discrimination against disabled people, who would be disproportionately likely to be excluded.
iii) the review decision had invented a discretion that did not exist under the policy, then purported to apply that discretion in holding against Ms W.
iv) the decision to exclude Ms W was in breach of section 15 Equality Act 2010, as the treatment was in regard to conduct which was causally related to a disability, and no lesser measures had been considered.
v) the ASB rule was a PCP which put the claimant at a disadvantage compared to a person who was not disabled, and no reasonable steps had been take to avoid that disadvantage.
vi) the allocation scheme was unlawful in that it did not enable applicants to understand how their application would be treated.

The High Court held:

On i) there was no requirement for a residual discretion in this instance. Statute did not require it. Individual circumstances were taken into account in the ASB policy through the address to conduct that would enable a possession order to be made. IN any event, there was a residual discretion to make direct offers.

On ii) there was no dispute that s.29 Equality Act applied, nor that the claimant was disabled, nor that the council were applied a PCP (policy, criterion or practice). The issue was whether sections 19(2)(b), (c) and (d) applied. This was for the claimant to establish.

The claimant had not advanced evidence sufficient to show that the policy “excludes from the housing register a greater number of those who have ADHD and ASD than of those who do not have those disabilities”.

But even if there was, the council had evidenced that the policy was a proportionate means of achieving its stated aim.

On iii) “I am satisfied that the matters to which Mr Hall had regard were those to which rule (d) entitled him to have regard and which were encompassed by the rule’s requirement that the decision-maker consider whether the relevant behaviour would have entitled the Defendant to a possession order.”

On iv) the available evidence did not establish that the claimant’s anti social behaviour arose in consequence of her disabilities.

On v) “The duty to make reasonable adjustments only arises if the PCP is applied and results in there being substantial disadvantage in relation to the comparator group.” As at ii) above, there was not adequate evidence to establish this.

And on vi) this merited careful scrutiny. The rule was poorly drafted and used shorthand form in referring to grounds of possession. It could be better and more fully explained, but it was not so opaque as to be unlawful.

Claim dismissed.