AB & Anor, R (On the Application Of) v Westminster City Council (2024) EWHC 266 (Admin)

This was a judicial review of both the suitability of accommodation provided to a homeless couple, and also of Westminster’s policy of sourcing temporary accommodation, which was claimed to indirectly discriminate against disabled people.

AB and CD had applied to Westminster as homeless after fleeing ‘cuckooing’ of their accommodation by a particularly dangerous criminal gang in Town X. (The police in Town X had ongoing concerns for the safety of AB and CD if identified, so the judgment anonymises these details). They had fled to London and were sleeping rough.

Both AB and CD suffer from serious mental and physical health conditions. CD uses a wheelchair. They have a dog.

Initially AB and the dog were accommodated in a hostel, and CD in accommodation in Ealing which was not wheelchair accessible. This was acknowledged as not suitable by Westminster, but agreed by the claimants in the short term. After receiving medical evidence on their need to be accommodated with their dog, Westminster agreed to seek suitable accommodation that would allow the dog and that the full housing duty was owed.

Judicial review proceedings were issued in August 2023 on the unsuitability of the accommodation and seeking interim relief to accommodate AB and the dog which was given. AB was accommodated in a Travelodge with the dog.

Westminster’s defence to the judicial review accepted that the accommodation provided to both AB and CD was not suitable at that date, and the question was one of relief and whether a mandatory order should be made.

In September 2023, on the advice of the police, the claimants were both accommodated outside of London in a Travelodge which took dogs and was wheelchair accessible. They remained there as of the hearing.

At the hearing, the claimant’s sought to argue that:

1. Breach of Housing Act 1996 s.193 duty, at least until the out of London Travelodge accommodation was secured.
2. The policy on support animals was unlawful.
3. Breach of Public Sector Equality Duty.

On 1, the court acknowledged the historic breach, but did not accept any ongoing breach, so no need of remedy by mandatory order.

On 2. the claimant’s contention was that Westminster’s policy was indirectly discriminatory because a) they required medical evidence of a need to be housed with an animal, and b) because Westminster’s policy for obtaining temporary accommodation did not include obtaining accommodation that permitted animals.

The court was not impressed with the case as brought. In order to establish indirect discrimination under section 19 Equality Act 2010, the claimant had to establish a) what the “provision, criterion or practice” was; b) that the PCP was applied to people who did not share the protected characteristic; c) that the PCP put persons who share the characteristic at a particular disadvantage in comparison; and d) the claimant was or would be put to that disadvantage.

These steps were not evidenced by the claimants here.

On the requirement for medical evidence of need for an animal

It may be that a requirement to evidence medical need will require steps to be taken which will not always be easy to satisfy. But there is no basis for assuming, certainly without evidence, that the requirement disproportionately disadvantages those with disabilities. If there is a limited pool of accommodation which accepts animals, there needs to be a mechanism by which it is distributed. A practice which requires medical evidence, rather than disadvantaging those with disabilities overall, may, in fact, ensure that those with the greatest disability-related need to be housed with the animal are prioritised. Without such a policy, and if the Defendant accepted it was sufficient for people simply to assert that they needed to be housed with an animal for such accommodation to be sought, the limited accommodation which accepts animals might well be allocated to those who have a lesser need for it. It may not be straightforward to obtain evidence of medical need, but I do not accept, without evidence to that effect, that the policy, as a general matter, disproportionately disadvantages those with disabilities. It may do so, or it may, as I indicated, advantage them.

In addition, the claimants had not evidenced that they were personally disadvantaged, as Westminster had secured accommodation that accepted dogs and there was no clear evidence of a delay having been caused by the need for medical evidence.

On the policy for securing temporary accommodation, this was a PCP for the purposes of s.19.

However, there was no evidence presented as to how it would disadvantage people with a disability generally in operation.

The PCP is the Defendant’s private sector procurement practices (which it is accepted leads to it having no regular providers of housing stock that accepts dogs), coupled with the possibility of “ad hoc” procurement where that is required. The difficulty is that I have no evidence of how that practice operates generally or how it impacts, or is likely to impact, on those with disabilities. I therefore have no basis for concluding that, as a general matter, the PCP places those with disabilities at a particular disadvantage compared to those without.

While detailed statistical evidence was not necessarily required (R (Burnip) v Birmingham City Council (2012) EWCA Civ 629), that was where it would be possible to infer a general disadvantage, or it was obvious. That was not the case here.

The PCP of having regular providers of temporary accommodation who do not accept animals, coupled with ad hoc provision, may disadvantage those with disabilities. Or it may not. In the present case the Defendant found the Claimants accommodation with their dog through ad hoc provision. (…)

The difficulty is that without the Claimants identifying exactly how the PCP disadvantages those with disabilities generally, and providing evidence which establishes such disadvantage, they are unable to satisfy EA 2010 s 19(2)(b).

Ground dismissed.

On the PSED, the claimants’ case was that Westminster had not had due regard to the claimant’s disabilities.

This was dismissed. Firstly, Westminster had admitted (and from the start) that the initial accommodation was not suitable by way of CD’s disability, and the claimants needed to be housed together. Their disability needs had indeed been considered, and it was a matter of process not outcome.

There was no evidence as to why the current accommodation was unsuitable in the short term. In any event, that was a matter for review and s.204 appeal.

Review dismissed, save in regard to the admitted breach prior to October 2023.