Allocation scheme unlawfully discriminated against those with disabilities, High Court judge rules
Birmingham City Council’s choice-based process for allocating homes to people with disabilities was discriminatory and therefore unlawful, the High Court has found.
In Nur & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1138 (Admin) David Lock QC, sitting as a deputy judge of the High Court, also found while hearing the second part of this case the council breached the public sector equality duty, though dismissed a claim that the policy was Wednesbury unreasonable saying this added nothing.
Judge Lock had in January ruled when he heard the first part of the case that the council acted unlawfully in misunderstanding the effect of its own policy.
The case was brought by Habibo Nur and her adult daughter Zakiya Abdulahi, who suffers from cerebral palsy, has learning difficulties and is at risk of unintentional self-neglect if not supported with daily living activities.
She has been assessed as needing a property with a level access shower, access to stairs with bilateral handrails and would benefit from a downstairs toilet. Ms Nur applied for various properties but was turned down repeatedly.
The judge found that although Birmingham implemented a housing allocation policy in 2014 following a properly conducted public consultation, no review ever occurred into how it worked in practice and there was no analysis of how it affected those with protected characteristics.
Birmingham appeared unaware that its policy of giving preference in allocating houses to households with children “had the potential to work to the detriment of disabled persons because they were less likely to live in a household with children”, Judge Lock said.
He added: “No one appears to have appreciated that a policy which gave a preference to one group of households, namely households with children, reduced the opportunities for households with disabled adults from securing a property under the council's allocation scheme.”
Judge Lock said the council had spent four years operating a scheme without knowing whether it achieved its objectives “or has unintended consequences which impact adversely on groups of Birmingham residents with protected characteristics”.
There was no suggestion that Birmingham was intentionally operating a housing allocation scheme which discriminated against any group with protected characteristics, but “a lack of intentional discrimination is, however, largely irrelevant for the purposes of the Equality Act 2010.
“The duties under the EA are not concerned with the intentions of decision makers but with the effects of their decisions.”
The judge criticised the lack of documents about how and why allocations were made by council officers, which he said, “appears to me to be unfortunate in the context of a large housing authority which was operating a complex system involving the allocation of a large number of properties on a weekly basis’.
Housing officer Vicki Pumphrey had exhibited a page from the council's website, which said: “If an applicant requires adaptations and bids for a standard unadapted property, it should be suitable for their needs or suitable to be adapted. The usual shortlisting rules will apply.
“If the property is accepted, tenants may then apply for a Disabled Facilities Grant to help towards the costs of making changes to the home by telephoning…for an Occupational Therapist assessment.”
Judge Lock said: “This evidence goes to the core of the council's defence to this case but there is no explanation as to why it only appeared midway through the trial.
“The council's case is that the fault here lay with [Ms Nur] because (a) she only bid for houses when she should have bid for other types of properties and (b) she put herself in an unnecessarily limited position by only bidding for adapted properties when she ought to have realised that she was entitled to bid for general use properties which could then be adapted.”
He said Birmingham’s answer was that there was no barrier to Ms Nur bidding for any home because the council “would have sought specific advice from a surveyor and an occupational therapist to determine whether a property could be adapted or not, and only ’skipped' the bid if the property could not be adapted”.
Judge Lock said: “I regret to have to observe that there seem to me to be substantial difficulties in accepting this late evidence as being a reliable guide as to how housing officers in Birmingham operated the policy when a household with a disabled person applied for a general needs property during the period when the council was in receipt of bids made on behalf of Mrs Nur.”
He said bid decisions were made quickly and it was “very hard to accept that it was standard practice for housing officers to seek and obtain advice about a particular property from an occupational therapist and a surveyor within the very short period between the day when the bids are placed and the day when decisions are made about whether a bid should be skipped or allowed through to the final decision making process”.
Judge Lock added: “It seems wholly impractical to say that housing officers sought and obtained advice from two independent experts within the short time window available before a decision was made that a bid was skipped.
“I can accept that this advice could be sought as part of the process to pursue a Disabled Facilities Grant application but not in the tight window of time before a bid was skipped.”
He found that persons in disabled households such as Ms Nur’s were in practice only able to have any chance of bidding successfully for adapted properties under Birmingham's system, while non-disabled households could bid for any property they wished.
“I thus find that the council's policy, as it operated in practice, amounted to indirect discrimination against the [Ms Nur] as a person with a disabled person in her household, and against [Ms Abdulahi]..and that, even though the policy was brought in for a legitimate aim, it was not proportionate and hence was unlawful,” Judge Lock concluded.
Mark Smulian
