The housing applicant, a lifelong London resident and single mother of three children, approached the London borough for housing assistance having become unintentionally homeless and in priority need. The local housing authority, in applying its policy of offering private rented sector accommodation, offered her a three-bedroom property in Walsall under a 24-month assured shorthold tenancy in what it classified as Zone C, which comprised of properties outside Zone A (properties located within the borough) and Zone B (properties located in Greater London and districts in the six neighbouring counties). The offer stated that its duty under section 193(2) of the Housing Act 1996 to secure accommodation would come to an end if the offer was accepted. The applicant accepted the offer and moved to Walsall but requested a review of the decision to offer the accommodation. The reviewing officer upheld the decision to offer the accommodation in Walsall having considered that the authority did not have a suitable three-bedroomed property available for her and her family in or near London and that, in any event, she would have been unlikely to be able to afford a suitable property in or near London as she was subject to a cap on the amount of welfare benefits she could receive. The reviewing officer concluded that the offer was reasonable and suitable and that the authority had therefore satisfied its duty under section 193(2) of the 1996 Act. The recorder in the County Court dismissed the applicant’s appeal against that decision. On her further appeal, the applicant asserted that the reviewing officer was in breach of section 149(1) of the Equality Act 2010 in not having due regard to the need to eliminate discrimination and advance equality by failing to consider the discriminatory impact of moving the applicant and/or single parent female households out of borough due to being impacted by the benefits cap.
On the appeal—
Held, appeal dismissed. The duty on a local housing under section 149 of the Equality Act 2010 to have due regard to certain matters needed to be considered in the context of the particular housing functions that the housing authority was exercising. Similarly, an officer reviewing a decision to offer accommodation would also have to have due regard to the specified matters in section 149. A fair reading of the authority’s policy of offering private rented sector accommodation was that it did not use the fact that someone was subject to a cap on benefits as a means of determining which accommodation should be offered. Rather, read as a whole, the policy provided that the authority would use offers of private sector tenancies as a means of fulfilling and discharging its duty under section 193(2) of the Housing Act 1996. The policy required the authority to have regard to whether a person could afford the accommodation offered (as was required by law) as well as other factors such as disruption to employment, education, or caring responsibilities, and accessibility to essential medical facilities and support. The benefits cap was not used as a proxy for determining the accommodation that a person would be offered but was simply a recognition of the affordability of accommodation in considering what accommodation to offer to a person in fulfilling the duty under imposed by section 193(2). The reviewing officer was well aware of the need to have regard to the section 149 duty and considered all the matters that the applicant relied upon in reaching their decision. In concluding that the offer was reasonable and suitable and the decision to discharge the duty under section 193(2) by making the offer was correct, the reviewing officer fulfilled the duty under section 149. The function the authority was performing was the discharge of its duty under section 193(2) and it could perform that function by arranging for a private rented sector offer of an assured tenancy. The section 149 duty applied to that function. In performing that function, however, the respondent had to have regard to the affordability of the accommodation and that, in turn, required the respondent to have regard to the means of the appellant (including whether those means were limited by a cap on welfare benefits), which meant that the accommodation in Walsall would be suitable, as it was affordable whereas temporary accommodation in or near London would not be likely to be affordable to the applicant. Consideration of the section 149 duty could not lead to any different conclusion. For an applicant to seek to use section 149 to achieve a substantive result, namely the performance of a function in a different way with different legal consequences from the way in which a local housing authority wished to perform the function, was not the purpose of section 149 and was not what the section required. In those circumstances, the reviewing officer was also entitled to conclude that the authority’s decision to bring the section 193(2) duty to an end by arranging for the offer of a fixed term tenancy was lawful and correct and that conclusion would not be affected by consideration of the specific matters identified. The authority had adopted an unchallenged policy governing the prioritisation of households. The section 149 duty, when applied to the decision to arrange for the offer a private rented sector fixed term tenancy, did not require the authority to adopt a different policy, such as providing additional financial payments to enable the applicant to be accommodated in or near London, and, more significantly, there was no evidential basis for considering that would result in the respondent exercising its functions under section 193(2) in a different way on the facts of the present case. Accordingly, the reviewing officer had due regard to the matters specified in section 149(1) of the 2010 Act in deciding that the offer was reasonable and suitable offer and that the housing authority’s decision to discharge its duty under section 193(2) by arranging that offer was lawful and correct (paras 37, 38, 40, 46, 47, 48, 49, 50).
Karon Monaghan KC and Amritpal Bachu (instructed by Hackney Community Law Centre) for the housing applicant.
Michael Mullin and Scarlet Taylor-Waller (instructed by Waltham Forest London Borough Council) for the housing authority.