Anisa Begum v London Borough of Tower Hamlets (2025) EWCA Civ 1049
We saw this judicial review claim in the High Court here. The claim was dismissed and Ms Begum appealed to the Court of Appeal. Shelter was given permission to intervene.
The issue was whether a database kept and used by Tower Hamlets of those owed a homelessness duty and in unsuitable accommodation amounted to a provision, criterion or practice (PCP) that was indirectly discriminatory against women. The High Court had said the database did not amount to a PCP.
Ms Begum’s appeal argued that
i) The Judge below had not correctly identified the alleged PCP. That “had two elements, namely (1) the practice of operating a database for homeless applicants who seek a transfer and (2) providing to some or all of the applicants unsuitable accommodation whilst they remain on the list.” The Judge had only addressed the database.
ii) The Judge had therefore not correctly addressed whether the PCP put women at a particular disadvantage.
The Court of Appeal was firm that a database, by itself would not amount to a PCP. But
Ms Monaghan’s point, however, is that the PCP relied upon in argument below had two elements: the practice of operating a database for homeless applicants seeking a transfer and providing to some or all of those applicants unsuitable accommodation while they remain on the list. I have some doubt as to whether operating a database for homeless applicants seeking a transfer and providing unsuitable accommodation while on the database involves the application of a PCP. On analysis, it appears to describe a state of affairs, that is, it describes persons to whom a duty under section 193(2) is owed, but who are not currently being provided with suitable accommodation in breach of that duty, and whose details are kept on the database to facilitate the provision of suitable accommodation and compliance with the duty. The state of affairs describes a group of persons but is not a means of differentiating between people and deciding who will be subjected to particular treatment and who will not. For the purposes of this appeal, however, I will assume that the element of providing unsuitable accommodation to some or all of the people on the database is a practice within the meaning of section 19(1) of the 2010 Act and I will consider whether, assuming it is a PCP, it is discriminatory.
On this, the difficulty for Ms Begum was that the figures given did not establish a basis to infer differential treatment
Nor does the increase in the proportion of women with a child or children shown in Info 1 as being in unsuitable accommodation, as compared with the proportion of such households in temporary accommodation generally, permit such an inference to be drawn. It is correct that there is an increase. The proportion of single female parent with a children or children is 34.2% of households provided with temporary accommodation (i.e. accommodation provided under Part VII). The proportion of such households in unsuitable accommodation is higher, at 50.4% in Info 1 (and 55.8% in Info 2). But the proportion of households with a male single parent and a child or children also increases from being 3.6% of the total number of households provided with temporary accommodation to 5.2% of the number of households in unsuitable accommodation in Info 1 (and 5.8% in Info 2). There is a higher proportion of single (male and female) parents in the group to whom a duty is owed under section 193(2) than in the “total temporary accommodation” category – because such persons are more likely to be in priority need and be owed the duty in section 193(2). But the proportions of women with a child or children in the group owed the section 193(2) duty is broadly constant, as is the group of men with a child or children. There is nothing to indicate that a higher proportion of women with a child or children, as compared with men with a child or children, are being assessed as owed the section 193(2) duty but are being shown on the database as being unsuitable accommodation.
(…)
An applicant will be owed a duty whether he or she is on the list or not. The obligation to secure suitable accommodation will arise when the respondent accepts that the requirements of section 193(2) are met irrespective of whether or not he or she is placed on the database. Similarly, the fact that a person is being provided with accommodation which is unsuitable and does not satisfy the requirements of section 193(2) has nothing to do with being placed on the database. The failure to comply with the section 193(2) duty arises out of the fact that the respondent says it does not have enough accommodation, particularly the larger accommodation required in many cases, to enable it to fulfil its duty. Being placed on the database is not what causes the person to be in unsuitable accommodation. Being on the database does not, of itself, put a person at a particular disadvantage. Indeed, the evidence of the respondent is that placing a homeless applicant on the database is a means of seeking to address the fact that the respondent is not complying with its public law obligation to secure suitable accommodation by ensuring it had up to date information which would enable it to secure suitable accommodation should it become available. I do not think therefore that the PCP relied upon does put women generally, or women with a child or children, at a particular disadvantage. I note that that is consistent with the submissions of Shelter which is that placing someone on a database does not, of itself, amount to putting the person at a particular disadvantage.
There may an issue as to whether leaving persons in unsuitable accommodation in breach of section 193(2) is capable of amounting to a PCP and if so, whether that has placed women, or women with a child or children, at a particular disadvantage, for example because women are being left longer in unsuitable accommodation as compared with men (or vice versa). That, however, is not the PCP that is relied on here. Further, and significantly (as the judge pointed out) there is no evidence that men are spending less time in unsuitable accommodation than women (or vice versa).
Appeal dismissed.
Comment
I said in relation to the original JR that I didn’t think I understood the grounds. The Court of Appeal judgment makes the grounds clearer, but I’d have to confess I still had trouble in following it.
I couldn’t (and apparently neither could the Court of Appeal) follow the connection between being on the database and being left in unsuitable accommodation for longer than ‘someone else’. Certainly the largest group by far who were on the database and in unsuitable accommodation were single parent women. But that is true of homeless households to whom a duty is accepted generally. It is also the case that single parent households (where the parent is a man or a woman) are more likely to be in unsuitable accommodation. That is the nature of much temporary accommodation. But quite how being on the database was connected to being left in that accommodation for longer, and particularly for women – without some cogent evidence as to this being what Tower Hamlets were doing, of which there was none – didn’t make sense to me.
But at least Ms Begum was provided with suitable accommodation in the course of the challenge following an order for interim relief.
I share your confusion.
I confess I only read the CoA judgment. I think perhaps the Applicant (or her legal advisors) assumed that putting someone on the database was, in effect, shunting them onto a new, different waiting list with less favourable outcomes than those not on the list. Perhaps it was only during the course of the litigation that it became clear that the database was really just an admin tool to keep track of those to whom the ‘main duty’ was owed.