AK, R (On the Application Of) v Westminster City Council (2024) EWHC 769 (Admin)

This was a judicial review of Westminster’s Allocation policy as it applied to ‘reciprocal transfers’ between another borough and Westminster.

As background:

The Claimant lives in social housing in a London Borough that borders Westminster. Her child was sexually abused by her neighbour. This abuse was discovered in 2021. The neighbour still lives next door to the Claimant. This has had an incredibly traumatic effect on the Claimant and her child. In order to avoid encountering her neighbour, the Claimant’s child has been living abroad with relatives whilst alternative safe and suitable accommodation is found. Her landlord has tried to find them alternative accommodation. Her landlord has been unable to find safe and suitable accommodation available in her borough. It is now over two years since the search for accommodation started and her child moved abroad. Both the Claimant and her child are suffering serious medical issues as consequence of the situation. These include suicidal ideation and depression. Before the move abroad the Claimant’s child spent time sleeping rough to avoid her previous housing, self-harming, taking drugs and has been excluded from school.

Ms AK applied to Westminster for a reciprocal transfer, meaning that Westminster would provide her with accommodation and in return have accommodation available to it for a Westminster tenant in AK’s borough. AK had extensive family and social connections in Westminster.

Westminster refused the application, saying

“Unfortunately,…due to the demand from priority groups and that by agreeing a reciprocal we would, based on current projections be rehousing (AK) over 10 years out of turn I am unable to agree this request”

This was said to be in line with Westminster’s allocation policy.

AK brought the present JR, asserting that:

a) the policy discriminates indirectly against women without proper justification contrary to s19 and thus s29 of the Equality Act 2010
b) Westminster was in breach of the Public Sector Equality Duty in failing to assess the policy’s impact, and
c) the policy amounted to a breach of Article 14 ECHR obligations, read with Article 8.

The relevant parts of the policy were as follows:

“5.1. Management Transfers

5.1.1. On occasions there are good management or other reasons (e.g. threatened or actual violence, racial harassment) to allow a tenant transfer outside the normal allocation priorities. The Director of Housing or delegated person(s) has the option of agreeing a Management Transfer on an exceptional basis (H.C 27th June 1995 The Supply and Allocation of Rented Housing).

5.1.2. Management Transfers are for existing Westminster Council tenants and will only be agreed where the household can be re-housed safely within the borough subject to a risk assessment and consideration of any other exceptional grounds. Where re-housing within Westminster is not appropriate the household will be given advice on alternative housing options in other areas which may also include, where appropriate, making an application for assistance under Part VII of the Housing Act 1996 to another local authority.”

Page 23 of the Policy stipulates that those with a ‘Pressing Housing Need’ on the transfer list, including those accepted for a management transfer, will be awarded 450 points. In essence this means that a person accepted for a management transfer under s5.1 will be rehoused in a matter of weeks whereas the Claimant, having applied under s5.3 would have to wait some 10 years to be rehoused.

“5.3. Reciprocals

5.3.1. Usually Registered Provider tenants will only be able to bid via Choice Based Lettings if they fall into one of the Priority Groups for re-housing.

5.3.2. However, in certain circumstances the Council may agree to assist RP tenants on a reciprocal basis. This is usually in a crisis or when it is of benefit to the Council to offer a reciprocal because this will produce a vacant property that is valuable to the Council in meeting housing demand.

5.3.3. All reciprocal arrangements are agreed on a discretionary basis and the Council retains the right to decline a request for a reciprocal agreement if it is not considered to be in the interests of the Council.

(…)

5.3.6. Reciprocals are only agreed when there is no material loss to the Council in terms of available housing stock. In most cases, this means that the Council will expect back a property of equal or larger size than the unit offered. The unit must also be comparable in terms of quality and type.”

So, in-borough tenants could get a management transfer (and hence 450 points) for actual or threatened violence etc, but out of borough/reciprocal transfers could not be ‘management transfers’ and hence not getting that priority. Further, reciprocal transfers, which got 400 points, not 450, were expressly stated as not being considered ‘out of turn’ at 5.3.12.

AK argued that the policy was more likely to affect women than men, for those escaping violence or crisis, and so was indirectly doscriminatory. Westminster had not shown that this was a proportionate means of achieving a legitimate aim. No PSED assessment had been carried out of the policy, which had originated in the 1990s, despite the introduction of, variously

‘Providing social housing for local people’ Statutory Guidance 2013
‘Domestic Abuse: Statutory Guidance’ July 2022
‘Allocation of accommodation: guidance for local authorities’ 2023

All of which mentioned the need for flexibility in policies to address the needs of those escaping violence, or domestic abuse. There was also the Domestic Abuse Act 2021 itself.

The Court held:

i) PSED – there was a breach of the PSED as Westminster provided no evidence of consideration of the policy, despite the changes in statute and in statutory guidance. The PSED was a duty of inquiry and this had not been carried out.

ii) Indirect discrimination – The policy treated those outside Westminster differently and less advantageously to those in Westminster.

Despite the element of discretion written in to the policy, Westminster provided no evidence of the operation of that discretion, so as to amount to equal treatment in practice.

The evidence, accepted by Westminster, was that women were more likely to be in need of escaping violence.

The policy was therefore indirectly discriminatory. It was not relevant that AK may have been able to move to another borough, the issue was whether she had been indirectly discriminated against by Westminster’s policy, which she had.

Justification – Westminster had simply provided no evidence as to justification of the policy.

Westminster attempted to sidestep this lack of evidence in their submissions. Those submissions boiled down, in reality, to submissions of what Westminster might have been able to show if it had put forward evidence or explanation. The most they offer is the view in the skeleton argument that “Even if D should have given …consideration to equalities issues…it is clear that it would have made no difference”. Westminster say this is because the discriminatory impact “largely arises from Westminster’s consideration of the nature of the reciprocal property being offered”. In submissions Westminster explained that if for example they were offered a reciprocal property in Cumbria then they would be justified in declining a reciprocal transfer because a property in Cumbria would be of little use to them. That misses the point. The decision they made was not on the basis of the reciprocal property being unsuitable. That was not a factor they even mentioned. Westminster seems to me be to arguing that compliance with its PSED would have produced the same Policy yet has not undertaken any assessment to see whether this is actually the case.

Westminster’s argument that any discrimination was justified failed.

iii) Breach of section 11 Children Act 2004.

There is, however, no evidence that the decision maker considered the situation of the Claimant’s child. The evidence actually points the other way. The decision maker simply states in the initial response that “it is unlikely that I will be able to agree – demand for accommodation far exceeds supply”. The Decision refers only to the “demand from priority groups” and to “rehousing her over 10 years out of turn”. The clear implication is that the decision maker considered the long list of people on the housing ladder and decided that as a matter of principle “queue jumping” was not permissible. In my judgment the Claimant has shown that Westminster has breached s11 when considering her application.

The decision under the policy was therefore unlawful. There was no need to go on to consider Article 14 with Article 8 discrimination.

Relief:

There was a number of ways in which Westminster could address the unlawfulness of the policy, whether by guidance, by producing evidence as to justification, and by carrying out a PSED compliant consideration of it. The policy was therefore not quashed.

The decision as to AK’s application was quashed as unlawful and it could not await whatever review of the policy Westminster was to carry out. The decision must be remade as if AK were applying under 5.1 of the policy, not 5.3, within 28 days.