Birmingham City Council Housing Allocation Scheme found to discriminate against households with disabled members

The High Court has just handed down judgment in R (Nur) v Birmingham City Council [2021] EWHC 1138 (Admin). The case is an important win for disabled people in housing need. 

David Lock QC found that Birmingham City Council's housing allocation policy was indirectly discriminatory against those with disabilities, and that the Council had failed to make reasonable adjustments for disabled people in the formulation of its policy.

Zia Nabi, instructed by the Community Law Partnership, represented the Claimants.

The parties

The Claimants were Mrs Habibo Nur and her adult daughter, Ms Zakiya Nur. Zakiya has cerebal palsy and learning difficulties. Her disabilities mean she needs to live in a property with a level access shower, stairs with handrails and a ground-floor bathroom. Mrs Nur is Zakiya's primary carer. They have both lived in Birmingham for many years.

The Defendant was Birmingham City Council ("the Council").

The facts

Mrs Nur registered on the Council's Housing List in August 2011 while living in private rented accommodation. In late 2018, the landlord of her accommodation obtained a possession order. The Council accepted they owed the family a homelessness duty. Mrs Nur was offered a house which she accepted. However, this was not adapted to meet Zakiya's needs and was not appropriate long-term accommodation for the family.

Over the following 18 months, Mrs Nur placed bids on a series of adapted properties but was unsuccessful with every bid. The only suitable adapted properties which came up for bidding during this period were houses, as opposed to flats or other types of properties. Mrs Nur proceeded on the understanding that she could only bid for properties that were already suitably adapted; that is, she could not bid on an unadapted property and then seek adaptations.

Under the Council's scheme, where bids were placed on a property, they would be allocated to the person in the highest priority band (as set out in the scheme) who had been on the register for the longest period of time. However, a bidder who was in "bid position 1"  - in accordance with their priority band and time on the register - might nevertheless be "skipped" if housing officers identified another reason why a property should be allocated to some other person.

The scheme also provided that preference was to be given to households with dependent children when allocating houses with two or more bedrooms. In practice, this was operationalised by housing officers "skipping" bids for such properties until they reached a household which included a child. 

Mrs Nur's bids on properties were "skipped" on a number of occasions, despite being in "bid position 1". Sometimes, this was because she was bidding for a house and her household did not contain any dependent children. On other occasions the recorded reason was that the property was not in line with medical recommendations and/or mobility requirements.

Mrs Nur was offered a house in September 2020, which was adapted with the aid of a Disabled Facilities Grant. She moved into the property in December 2020. This was a direct offer, made outside the allocation scheme.

In December 2020 it was held that, despite the case arguably being academic, it should still be determined because it was a matter of broader public importance.

Indirect discrimination

The Claimants alleged that the Defendant's housing allocation scheme discriminated against disabled people. In particular, the Claimants argued:

• A household with a disabled person could not bid for a property that was not adapted to meet the needs of the person with disabilities.
• All the adapted properties were houses. 
• As per statistics from ONS, disabled adults are much more likely to live with their parents than non-disabled adults. Accordingly, a disabled person is more likely to be living in a household without children than a non-disabled person. 
• The preference for households with children when allocating houses under the scheme reduced the opportunities for households with a disabled adult to secure a suitable property. In Mrs Nur's case, she had been prevented from bidding on any suitable property.

The Council contended that there was no bar on a household with a disabled person from bidding for a property that was unadapted. Accordingly, Mrs Nur's choices were not limited to adapted properties and, in turn, houses. In essence, the fault lay with Mrs Nur because she should have bid for other properties. If she had done so, Mrs Nur's bid may have been successful.

In addition, the Council stated that Mrs Nur had only been skipped in relation to adapted properties where the successful bidder had both dependent children and a need for an adapted property due to disability. 

Unusually, in the judicial review context, the Council's evidence was not accepted. There was nothing in writing - such as a procedural manual for housing officers - evidencing how the scheme should be operated which supported the Council's position. Further, the Council's position was inconsistent with the other documentary evidence available.

David Lock QC concluded: 

• Bids made on unadapted properties by a bidder with a need for an adapted property would be "skipped"  (para 99).
• Adapted houses would be offered to a family with dependent children before any consideration was given to offering it to a person with a disability (para 75).
• The Council's practices meant that "in reality, Mrs Nur's bids would always fail." This was because she could only successfully bid on adapted properties. All adapted properties were houses. Houses were always allocated to families with dependent children (para 103).

In turn, David Lock QC held that the Council's scheme was indirectly discriminatory, contrary to s.19 Equality Act 2010:

• The Council's scheme was a "provision, criterion or practice" ("PCP").
• The PCP put persons who have a disabled member of their household ("disabled households") at a particular disadvantage when compared with persons who do not have a disabled member of their household ("non-disabled households").
• The Council had a legitimate aim in giving a measure of preference to houses for families with dependent children; namely, providing children with access to outside space and avoiding difficulties for families in accessing flats via stairs, given the use of pushchairs.
• However, the Council's scheme, as operated, was not a proportionate means of achieving this legitimate aim. David Lock QC concluded that in determining proportionality, he was entitled to look at how the scheme worked in practice, not just its theoretical operation in idealised circumstances (para 122). He held that the Council's PCP applied so that allof the adapted properties available to the Council were, in practice, only allocated to households with children.  This could not be justified because:
  • All of the reasons for giving preference for houses to households with dependent children applied equally to households with a disabled member (para 125). 
  • The Council could not show that limiting disabled households' chances of a successful bid was proportionate, where there was no evidence that there was a reasonable remaining pool of properties on which they could bid (para 126).
  • Even if all adapted properties were let to households with a child and a disabled member (which was not evidenced), this was not justifiable. There was still a blanket ban in practice for disabled families without children being able to bid successfully for adapted properties (para 127).
  • It was not an answer that the Council retained a discretion to allocate property outside of the bidding system (para 128).

Accordingly, the Council's scheme, as operated in practice, was indirectly discriminatory.

Reasonable adjustments

The Claimants further alleged that the Council was in breach of its duty to make reasonable adjustments, as per s.20 Equality Act 2010 ("EA 2010"). 

This raised a novel point: whether a housing authority that operates a housing allocation policy is bound by the provisions of Part 3 or Part 4 EA 2010. The distinction has significant consequences. Under Part 4, a duty to make reasonable adjustments does not arise until such adjustments are requested, and the duty to make reasonable adjustments does not include a duty to make physical alterations to a property. These limitations do not exist under Part 3.

The decision turned on the meaning to be given to section 32(3)(b) EA 2010, namely whether the provision of social housing accommodation "is for the purpose only of exercising a public function or providing a service to the public or a section of the public." If the provision of social housing accommodation is for the purpose only of exercising a public function etc., then Part 3 will apply. Otherwise, Part 4 will apply.

David Lock QC held that section 32(3)(b) did apply in this case. The Council was operating its housing allocation scheme solely to fulfil its statutory role as a housing authority; that is, to exercise a public function. Accordingly, Part 3 applied. He concluded there is "good reason why more onerous duties should be placed on public bodies that are discharging statutory functions when providing accommodation as opposed to private sector providers of accommodation." (paras 147-148).

Further, it was held that the Council had failed to make reasonable adjustments in this case:

• The Council's scheme operated in practice to put disabled people at a "substantial disadvantage". Thus the Council was under a duty to make reasonable adjustments to its allocation scheme.
• The Council took no steps to adjust the policy to meet the needs of disabled people. There were reasonable adjustments that could have been made, including that properties adapted to meet the needs of disabled persons could be exempted from the automatic preference given to households with children. Alternatively, pro-active steps could be taken to enable disabled people to secure accommodation by providing them information on properties that are not currently adapted but which could be adapted, that they can bid on. Further, a measure of preference could be given to disabled households in bidding on properties that could be adapted.

Conclusion

The judgment provides an important tool for practitioners when considering potential challenges to housing allocation policies. It demonstrates that the courts will be willing to engage, with rigour, in a consideration of the effect of a policy on the ground.

Further, the judgment usefully clarifies that housing allocation schemes are subject to the more extensive duty to make reasonable adjustments under Part 3 EA 2010.

Unsurprisingly, Birmingham City Council are reviewing their housing allocation scheme, and state they will take account of the terms of this judgment in that review (para 132). Other local housing authorities should consider doing the same.