Webb-Harnden v LB Waltham Forest [2023] EWCA Civ 992

22nd August 2023

Michael Mullin and Scarlet Taylor-Waller succeed in the Court of Appeal

Today the Court of Appeal have handed down judgment and found in favour of the Council that it had due regard to s.149 of the Equality Act 2010 (“the 2010 Act”) in its offer of accommodation under s.193 and s.196 of the Housing Act 1996 (“the 1996 Act”).

On 20 September 2021 the Council notified the Appellant that it had arranged an offer of an assured shorthold tenancy in Walsall which, if accepted or refused, would bring to an end its duty under s.196 of the 1996 Act. The Appellant accepted the offer of accommodation but requested a review of its suitability. On review, the reviewing officer upheld the decision and concluded that the accommodation was suitable.

The appeal concerned s.149 of the 2010 Act which requires public bodies when making decisions to have due regard to the need to eliminate discrimination and to advance equality of opportunity across the protected characteristics set out in the Act (“the PSED”).

The Appeal
The appeal was pursued on one ground. Namely, the Council had breached the PSED by failing to consider the discriminatory impact of moving the Appellant, a single female parent household, out of borough due to being impacted by the benefit cap. Whilst the Appellant accepted that the benefit cap was not in itself discriminatory, the Appellant contended that the benefit cap was being used by the Council as a proxy to determine what accommodation would be suitable for individual applicants and this put women at a disadvantage.

The Court of Appeal dismissed the appeal and unanimously held that the Council had due regard to the PSED. However, the Court also found that consideration of the PSED would not have led to a different conclusion as what the Appellant was truly seeking was in fact a different result. That is not the purpose of the PSED, and it is for the Council to determine how it should exercise its functions and discharge the s.193 and s.196 duty.

Further, the Court found that the Council did not use the fact that someone is subject to the benefit cap as a means of determining which accommodation would be offered. Rather, the Council in accordance with s.193 and s.206 of the 1996 Act and the Homeless (Suitability of Accommodation) Order 1996 were duty bound to consider whether the accommodation was suitable and affordable. Where an individual is benefit capped this will inevitably involve recognition of its effect on affordability. However, this is by no means determinative under the Council’s policy.

Michael and Scarlet were instructed by Glenn Craig, Arandeep Hundal and Kim Travis of the London Borough of Waltham Forest.

A copy of the judgement can be found here.