Single Medical-Award-Per-Household Housing Allocations Can Be Equality-Compliant: PSED Is Process Not Outcome

1) Introduction

In BC, qua the Financial and Welfare Guardian of CC (AP) against West Dunbartonshire Council for Judicial Review [2026] CSOH 65, the Outer House of the Court of Session (Lord Renucci) refused a judicial review challenging (i) West Dunbartonshire Council’s Housing Allocations Policy (“HAP”) and (ii) an appeal decision dated 22 July 2025 refusing to award “medical points” in connection with a rehousing application.

The petitioner acted as welfare and financial guardian for an adult child, CC, who had multiple diagnosed disabilities; another adult child, NC, had already been awarded 60 medical points under the HAP. The household lived in a council-tenanted property with reported dampness and mould. The Council’s inspection and remediation efforts were materially impeded by the volume of stored items limiting access.

The legal challenge advanced three main propositions:

  • PSED unlawfulness: the HAP allegedly failed to comply with the Public Sector Equality Duty (“PSED”) in section 149 of the Equality Act 2010.
  • Substantive Equality Act breaches: the HAP and/or its application allegedly breached sections 15 (discrimination arising from disability), 19 (indirect discrimination), and 20 (reasonable adjustments).
  • Remedies: reduction of the appeal decision and a direction to reconsider medical points.

2) Summary of the Judgment

The court refused the petition. It held, in essence, that:

  • The HAP complied with section 149 because the Council had “due regard” in substance; the PSED is process-focused, not outcome-driven.
  • There was no section 15 breach: awarding nil points was not “unfavourable treatment” because of something arising from CC’s disability; in any event the scheme pursued a legitimate aim proportionately.
  • There was no section 19 breach: the petitioner failed to evidence that the policy put disabled persons at a particular disadvantage or that CC suffered that disadvantage.
  • There was no section 20 breach: absent proof of “substantial disadvantage” caused by the HAP compared with non-disabled persons, the duty to make reasonable adjustments did not arise.

The court accepted as legitimate and rational the HAP’s design choice that medical points are awarded per household (a single award reflecting the household member with the greatest medical need), rejecting the argument for aggregation of multiple household members’ points.

3) Analysis

3.1 Precedents Cited

  • Hotak v Southwark London Borough Council [2016] AC 811
    Used to anchor the proposition that the PSED in section 149 is a duty to have “due regard” to statutory goals (process), not a duty to achieve any particular outcome. The judgment relied on the language that the duty must be exercised “in substance, with rigour and with an open mind”, while recognising that weight is for the decision-maker (subject to rationality review).
  • (R (on the Application of Bracking) v SSWP [2013] EWCA (Civ) 1345)
    Cited for the “not just ticking boxes” formulation (McCombe LJ). The court treated the HAP’s express articulation of equality commitments and its structural approach to allocation as indicative of a substantive, rather than cosmetic, approach to equality considerations.
  • R (on the application of SG) v Secretary of State for the Home Department [2016] EWHC 2639 (Admin)
    Relied upon for judicial restraint: courts should adopt a “realistic and proportionate” approach to evidence of PSED compliance, avoiding micromanagement or overly forensic analysis of administrative decision-making.
  • Williams v Swansea University [2019] I WLR 93
    Used to frame section 15 as turning on two practical factual questions: what was the relevant treatment, and was it unfavourable. The court applied that approach to the nil-points outcome and rejected that it amounted to unfavourable treatment “because of something” arising from disability.

3.2 Legal Reasoning

(a) PSED (Equality Act 2010, section 149): “due regard” not “guaranteed outcomes”

The petitioner’s PSED argument was, substantially, inferential: the refusal of medical points (and ongoing unsuitability of the accommodation) was said to demonstrate that the HAP failed to reflect disabled households’ needs and therefore must be PSED-noncompliant. The court rejected that logic. The PSED does not mandate a particular allocation result for an applicant; it mandates conscientious consideration of the statutory needs in section 149(1), with the decision-maker determining appropriate weight.

Crucially, the court found positive indications of compliance within the HAP itself:

  • Express reference to equality objectives and protected characteristics, including disability;
  • Express reference to section 149 obligations;
  • A structured “group plus points” allocation method intended to identify reasonable preference and specific needs, including medical needs and disability.

On that basis, the court held the PSED had been exercised “in substance” and not as a box-ticking exercise.

(b) The “single medical award per household” rule as an equality-relevant design choice

A central attack concerned the HAP guidance that “only one award can be given per household” and that applicants should apply for the household member most affected by the accommodation. The petitioner contended that the inability to aggregate points across multiple disabled household members disproportionately harmed such households.

The court accepted the Council’s justification: aggregation could allow multiple minor conditions in one household to “outscore” a household with one person in extreme need, thereby undermining allocation by relative need. The HAP’s approach was therefore treated as a reasoned mechanism to promote fairness and to allocate scarce adapted/suitable stock to those who need it most—i.e., a legitimate aim pursued by proportionate means.

(c) Section 15 (discrimination arising from disability): nil points not “unfavourable because of something arising”

The court identified the relevant treatment as the award of nil points. It then held this was not “unfavourable” in the sense required by section 15 because the petitioner was not treated adversely “because of something arising” from disability; rather, the medical-points mechanism exists only because disability-related needs can be prioritised. The judgment also placed weight on the fact that the household already held a medical award (60 points for NC), reinforcing that the HAP did accommodate disability-related needs at household level.

Even if the result were viewed as unfavourable, the court held the system pursued legitimate aims (needs-based allocation and fair ordering of priority) by proportionate means.

(d) Section 19 (indirect discrimination): evidential burden and “particular disadvantage”

The court treated the petitioner as failing at the core comparative/evidential stages:

  • The HAP applied generally (section 19(2)(a) satisfied), but
  • There was insufficient evidence that the relevant provision/criterion/practice put disabled persons at a “particular disadvantage” (section 19(2)(b)), and
  • Accordingly, insufficient basis to conclude CC was put at that disadvantage (section 19(2)(c)).

The judgment illustrates a recurrent feature of indirect discrimination challenges: courts often require some concrete footing—comparators, patterns, or other evidence—linking the policy’s structure to group disadvantage, not merely an individual’s disappointing outcome.

The court added that, even if disadvantage had been proved, the policy would in any event be justified as proportionate means of achieving a legitimate aim.

(e) Section 20 (reasonable adjustments): no duty triggered without substantial disadvantage

The duty to make reasonable adjustments under section 20 is triggered where a provision, criterion or practice causes “substantial disadvantage” compared with non-disabled persons. The court held the petitioner had not demonstrated that the HAP put disabled persons at such a disadvantage. The analysis therefore ended at the threshold stage: absent substantial disadvantage, the adjustment duty did not arise.

3.3 Impact

  • For Scottish social landlords: the decision supports the lawfulness (in principle) of a household-based medical priority model with a single award reflecting greatest need, provided it is rationally justified and embedded within an allocations framework that consciously engages equality considerations.
  • For PSED challenges: the judgment reinforces that section 149 litigation is typically won or lost on process evidence, not on the claimant’s dissatisfaction with the result. Express policy-level engagement with section 149, and a coherent explanation of design choices, will be significant defensive material.
  • For indirect discrimination and reasonable adjustment claims: the case is a reminder that challengers must evidence “particular disadvantage” (section 19) or “substantial disadvantage” (section 20). An individual adverse outcome, without more, may be insufficient to cross the threshold.
  • For future allocation disputes: the court’s acceptance of anti-gaming/queue-integrity rationales (preventing accumulation of minor awards) is likely to be invoked by authorities defending points-based prioritisation systems.

4) Complex Concepts Simplified

  • PSED (“due regard”) (Equality Act 2010, section 149): a legal requirement to think carefully—at the time decisions are made—about equality goals (eliminating discrimination, advancing opportunity, fostering good relations). It is about how the authority makes and structures decisions, not guaranteeing a particular applicant’s success.
  • Section 15 (discrimination arising from disability): focuses on unfavourable treatment that happens because of something connected to disability (for example, disability-related behaviour or consequences), unless justified as proportionate to a legitimate aim.
  • Section 19 (indirect discrimination): concerns neutral rules that apply to everyone but disadvantage people sharing a protected characteristic; claimants generally must show group disadvantage and a causal link.
  • Section 20 (reasonable adjustments): requires steps to avoid “substantial disadvantage” to disabled people caused by policies, physical features, or lack of auxiliary aids—but only once that disadvantage is established.
  • Proportionate means of achieving a legitimate aim: a structured justification test: the aim must be lawful and important (e.g., fair and needs-based allocation of scarce housing), and the measure must be a balanced way of achieving it.

5) Conclusion

Lord Renucci’s decision in [2026] CSOH 65 confirms that a social landlord’s housing allocations policy can comply with the Equality Act 2010 while limiting medical priority to a single household award, where the limitation is coherently justified by needs-based allocation and fairness. It also restates a key public law message: section 149 PSED is a duty of rigorous consideration, not a duty to deliver a particular outcome, and Equality Act challenges under sections 19 and 20 will often fail without clear evidence of group-based disadvantage caused by the policy.