BC, qua the Financial and Welfare Guardian of CC (AP) against West Dunbartonshire Council for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioner brought judicial review proceedings against Company A concerning (a) the terms of Company A's Housing Allocations Policy ("HAP") and its compliance with the Public Sector Equality Duty (PSED) in section 149 of the Equality Act 2010 as it relates to persons with disabilities, and (b) Company A's decision dated 22 July 2025 refusing to award Medical Points to the Petitioner in relation to a rehousing application. The Petition was raised on 21 October 2025 and seeks declarators that the HAP is unlawful under the Equality Act 2010 (sections 15, 19, 20 and section 149), reduction of the decision of 22 July 2025 and a direction to reconsider the award of medical points within six weeks. The proceedings were heard by Judge Renucci.

The Petitioner is the financial and welfare guardian of her adult son ("Protected Person"). The household includes the Petitioner, the Protected Person (aged 28) with multiple diagnosed and suspected disabilities, and a daughter (a separate household member who had previously been awarded 60 medical points). The family reside in a ground-floor prefabricated three-bedroom flat let by Company A. The Petitioner reported mould and dampness; Company A's inspections were impeded by large volumes of items stored within the property. Company A installed ventilation fans and offered to store the Petitioner's possessions to allow inspection; the offer was not accepted. The Petitioner applied for medical priority points on behalf of the Protected Person on 14 January 2025; an occupational therapist assessment recommended no need for rehousing and Company A awarded nil points to the Petitioner and the Protected Person. An internal appeal was refused on 22 July 2025.

Legal Issues Presented

1. Whether Company A's HAP is unlawful for failing to discharge the Public Sector Equality Duty under section 149 of the Equality Act 2010 in respect of housing allocations for persons with disabilities.
2. Whether the HAP is unlawful as contravening sections 15 (direct discrimination), 19 (indirect discrimination) and 20 (duty to make reasonable adjustments) of the Equality Act 2010 in the decision to refuse additional medical points.
3. If unlawful, which remedies (declarator, reduction of decision, direction to reconsider medical points) should be pronounced.

Arguments of the Parties

Petitioner's Arguments

• The HAP fails to reflect and accommodate the needs of a household where multiple members have disabilities; it does not permit aggregation of medical points within a household and thereby disproportionately disadvantages such households.
• The HAP and its application are directly and indirectly discriminatory contrary to sections 15 and 19 of the Equality Act 2010 and fail to make reasonable adjustments under section 20.
• Company A did not properly apply the PSED (section 149) when formulating and operating the HAP, relying on Bracking to contend that outcomes as experienced by disabled groups had not been achieved.
• The refusal to award additional medical points to the Petitioner and Protected Person (nil points) demonstrates the policy's failure to meet statutory equality duties.

Respondent's Arguments

• The HAP is lawful, fair and proportionate and complies with the PSED; the PSED requires due regard (a process), not a guaranteed result, citing Hotak.
• The degree of due regard required depends on context; Company A adopted a proportionate and realistic approach to PSED compliance, citing R (SG) v SSHD.
• The Petitioner has not established the elements required for indirect discrimination under section 19 or for a duty to make reasonable adjustments under section 20; no prima facie evidence of substantial disadvantage was shown.
• The award of nil points does not constitute direct discrimination under section 15 because it was not treatment arising from the Petitioner's disability, and any adverse treatment would be proportionate to legitimate aims of the HAP.
• The court should refuse the petition.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified three issues: PSED compliance under section 149, alleged breaches of sections 15, 19 and 20 of the Equality Act 2010, and appropriate remedies if breaches were found.

On PSED (section 149) the court held that the duty requires due regard (a process), not guaranteed outcomes. Relying on Hotak and Bracking, the court required that Company A exercise the PSED "in substance, with rigour and with an open mind." The court examined the HAP (approved February 2022), which expressly committed to fulfilling the equality duty and set out a group "points plus" allocation system including a single household medical award. The court accepted Company A's explanation that medical points are applied per household to the person with the most severe condition to ensure allocation by need and avoid aggregation of minor awards. The court found evidence that Company A had given proper consideration to section 149 and had acted proportionately; consequently the HAP complied with the PSED.

On section 15 (direct discrimination) the court applied the Williams two-question approach. The relevant treatment was the award of nil points. The court found that receiving nil points did not necessarily constitute unfavourable treatment because it did not result from something arising from the Petitioner's disability in the sense required; moreover, even if unfavourable, the treatment was a proportionate means of achieving the legitimate aim of allocating adapted properties to those most in need. The household had already benefited from a 60-point medical award to the daughter, which informed the proportionality assessment.

On section 19 (indirect discrimination) the court held that although the HAP applies to all (satisfying s19(2)(a)), the Petitioner failed to demonstrate a causal link or that the HAP puts disabled persons at a particular disadvantage (s19(2)(b)–(c)). Even if indirect discrimination were shown, Company A demonstrated that the policy is a proportionate means to a legitimate aim (ensuring suitable allocations to those with greatest need).

On section 20 (reasonable adjustments) the court concluded the Petitioner had not established that the HAP places disabled people at a substantial disadvantage compared with non-disabled persons; therefore the duty to make reasonable adjustments did not arise.

Overall, the court found Company A had lawfully designed and applied the HAP and had complied with statutory duties and relevant authorities.

Holding and Implications

REFUSED

Holding: The court upheld Company A's third and fourth pleas-in-law, repelled the Petitioner's pleas-in-law and refused the petition. Questions of expenses were reserved.

Implications: The direct effect is that the Petitioner’s challenge to Company A's HAP and the decision of 22 July 2025 was dismissed and Company A's decision stands. The opinion does not purport to create new legal precedent; it applies established authorities (as cited) to find the HAP lawful and compliant with the PSED and Equality Act 2010.