AK, R (On the Application Of) v Westminster City Council

Factual and Procedural Background

This is a claim for judicial review of a decision by Company A ("the Council") and the housing policy under which that decision was made. The Claimant and her child, whose identities are anonymized by court order, have experienced serious trauma after the child was sexually abused by a neighbour who continues to live next door. To avoid contact with the neighbour, the child has been living abroad with relatives while alternative safe and suitable accommodation is sought. Despite efforts by the Claimant's landlord, no suitable accommodation has been found in the Claimant's borough for over two years. Both Claimant and child suffer serious medical issues including suicidal ideation and depression.

The Claimant has close connections with the Council's area, having lived there for six years with her child, and has family and social networks there. She applied to Company A for a "reciprocal transfer"—an arrangement where the Council would offer accommodation in exchange for equivalent accommodation in the Claimant's current borough. On 18 June 2023, the Council refused this request, citing demand from priority groups and projected rehousing times exceeding ten years as reasons.

The Claimant challenges both the refusal decision and the underlying housing policy (the "Policy"), specifically sections 5.1 and 5.3 of the Housing Allocation Scheme (February 2023). The Claimant alleges the Policy unlawfully discriminates indirectly against women, breaches the Public Sector Equality Duty (PSED), violates human rights under the European Convention on Human Rights (ECHR), and breaches statutory duties under the Children Act 2004. The Claimant seeks declarations of unlawfulness, quashing of the decision, and reconsideration treating her as if she were a tenant of the Council.

The Council contends that the Policy is lawful, the decision was properly made exercising discretion, and denies any valid claim by the Claimant.

Legal Issues Presented

1. Whether the Policy, specifically sections 5.1 and 5.3, indirectly discriminates against women contrary to sections 19 and 29 of the Equality Act 2010.
2. Whether the Council has complied with its Public Sector Equality Duty under section 149 of the Equality Act 2010 in relation to the Policy.
3. Whether the Policy and Decision violate Article 14 (prohibition of discrimination) when read with Article 8 (right to respect for private and family life) of the ECHR.
4. Whether the Council breached its duty under section 11 of the Children Act 2004 by failing to have regard to safeguarding and promoting the interests of children in the Decision.
5. Whether the Decision was made lawfully in accordance with the Policy and established legal principles.

Arguments of the Parties

Appellant's Arguments

• The Policy treats tenants of the Council differently from non-tenants, disadvantaging those outside the borough.
• Women are disproportionately affected as they are more likely to need to move borough to escape violence or crisis.
• The Policy is indirectly discriminatory against women without proper justification.
• The Council has failed to comply with the Public Sector Equality Duty by not carrying out appropriate assessments.
• There is no evidence that the Council has justified the indirect discrimination.
• The Policy and Decision breach Articles 8 and 14 of the ECHR as there is no objective and reasonable justification for the discrimination.
• The Council breached its statutory duty under section 11 of the Children Act 2004 by failing to consider the needs of the Claimant's child.
• The Decision was made without proper regard to the Policy and relevant factors and should be quashed.

Defendant's Arguments

• The Policy sections 5.1 and 5.3 do not treat tenants and non-tenants differently in a manner relevant to this case.
• Any differences do not amount to indirect discrimination.
• If indirect discrimination exists, it is justified as a proportionate means of achieving a legitimate aim under the Equality Act 2010.
• The discretion within the Policy ensures it is not operated discriminatorily as a matter of fact.
• The Council has complied with its Public Sector Equality Duty or any non-compliance is immaterial.
• The Claimant's human rights claim under the ECHR should fail as housing allocation rights do not fall within Article 8's ambit.
• The Decision maker had all relevant evidence and properly considered it when making the Decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Coll) v Secretary of State for Justice [2017] UKSC 40	Public Sector Equality Duty and justification of indirect discrimination	Supported the principle that failure to comply with PSED undermines the ability to justify indirect discrimination; the Court found the Council had not shown justification.
R (Ward) v London Borough of Southwark [2019] EWCA Civ 692	Indirect discrimination and housing policies	Guided the Court in assessing whether a policy indirectly discriminates against women needing to move borough to escape violence; principles applied in analysis.
Bank Mellat v HM Treasury (No 2) [2014] AC 700	Test for justification of discriminatory measures	Referenced regarding the four-stage test for justification of indirect discrimination under the Equality Act.
R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345	Public Sector Equality Duty interpretation	Quoted for the heavy burden on public authorities to discharge PSED rigorously; used to assess Council's compliance.
R (KS) v London Borough of Haringey [2018] EWHC 587 (Admin)	Scope of duty under section 11 Children Act 2004	Used to clarify that local authority must identify and actively promote principal needs of children; applied to assess Council's duty.
R v London Borough of Jones ex parte James [1995] ELR 55	Fettering discretion by policy	Applied to evaluate whether the Council unlawfully fettered discretion by applying a "queue jumping" policy.
Thlimmenos v Greece (2001) 31 EHRR 411	Article 14 ECHR discrimination principles	Referenced in relation to the Claimant's argument on discrimination under ECHR Articles 8 and 14.
R (TX) v London Borough of Camden [2023] HLR 17	Indirect discrimination in housing context	Guided the Court's approach to indirect discrimination claims related to housing allocation.
R(H) v London Borough of Southwark [2017] EWCA Civ 1127	Indirect discrimination and housing allocation	Referenced alongside other cases to inform the Court’s analysis of the Policy’s discriminatory effect.

Court's Reasoning and Analysis

The Court first addressed the Public Sector Equality Duty (PSED), concluding that the Council had failed to comply with its statutory duty under section 149 of the Equality Act 2010. Despite multiple opportunities and statutory guidance updates, the Council did not provide evidence of having considered equality impacts or the specific needs of victims of violence within the Policy, which had remained largely unchanged since the 1990s.

The Court found that sections 5.1 and 5.3 of the Policy constitute provisions, criteria or practices (PCPs) for the purposes of indirect discrimination analysis. These sections treat existing tenants of the Council more favorably (section 5.1) than non-tenants seeking reciprocal transfers (section 5.3), with significant differences such as points awarded and discretion exercised.

The Council argued that discretion within the Policy could mitigate differences, but no evidence was provided that discretion was exercised to equalize treatment. The Court rejected the Council’s claim that the Policy was operated without discrimination.

The Court determined that section 5.3 indirectly discriminates against women, who are disproportionately represented among those needing to move boroughs to escape violence. The Policy’s effective residence requirement disadvantages women more than men, and the Council failed to justify this indirect discrimination under section 19(2)(d) of the Equality Act 2010.

Regarding the Claimant, the Court found she suffers from the discriminatory effect because she needs to move borough for safety reasons and cannot be accommodated safely in her current borough. The Council’s argument that alternative boroughs might be available was rejected as irrelevant to the discrimination claim.

The Court did not decide on the alleged breach of Articles 8 and 14 of the ECHR, as the findings on indirect discrimination and PSED non-compliance were dispositive.

On the Children Act 2004 section 11 duty, the Court found no evidence that the decision maker properly considered the Claimant's child's needs. The Decision’s focus on "queue jumping" and demand from priority groups indicated a failure to have regard to safeguarding and promoting the child's welfare, constituting a breach of section 11.

Concerning the Decision-making process, the Court found that the Decision was made without properly considering the Claimant’s crisis situation as required by the Policy, and that the Council may have unlawfully fettered its discretion by applying an unofficial "queue jumping" policy.

The Court distinguished between temporary accommodation (which the Council has a duty to provide) and permanent social housing, noting the Claimant’s entitlement to temporary accommodation does not affect the relief sought here.

Holding and Implications

The Court held that:

The relevant sections of the Policy (notably section 5.3) are unlawful due to indirect discrimination against women and failure to comply with the Public Sector Equality Duty.

The Court declared the relevant parts of the Policy unlawful but did not quash them, recognizing that the Council may make the Policy lawful by issuing guidance or providing justification without wholesale replacement.

The Decision refusing the reciprocal transfer was unlawful for failing to properly apply the Policy and statutory duties, including consideration of the Claimant's crisis and the child's welfare.

The Council is ordered to reconsider the Claimant's application treating her as if she were a tenant of the Council (i.e., applying the more favorable section 5.1 criteria) and to communicate its decision with reasons by 4pm on Tuesday 30 April 2024.

The Court acknowledged the Council may seek to vary this order if it lawfully amends the Policy in the future.

The claim for damages will be transferred to the appropriate court if not agreed.

No new precedent was established beyond the application of existing legal principles; the decision directly affects the parties by requiring reconsideration of the Claimant's housing application under lawful criteria.