Court of Appeal considers combination of protected characteristics in context of homelessness review

01 Apr 2022

Local Government

The Court of Appeal has given judgment in Biden v Waverley Borough Council [2022] EWCA Civ 442. The case concerned the sufficiency of inquiries made to determine the suitability of accommodation offered to a homeless applicant with the protected characteristics of disability (osteoarthritis to the right knee, depression, and anxiety) and gender reassignment (trans woman).

The Appellant had rejected a final offer of accommodation of a ground floor self-contained flat in a purpose-built low-rise block let by an independent housing association. The flat was situated approximately 0.9 miles away from where the Appellant was living when she became threatened with homelessness. The Appellant’s solicitors had asked for a review of the suitability of the accommodation contending (inter alia) that insufficient consideration had been given to the fact that the Appellant had “been the victim of many incidents which have left her frightened and concerned to be in remote unfamiliar areas.” In the course of her review, the reviewing officer made inquiries of a local police support community officer as to the incidence of transgender hate crime in the area. The offer was upheld on review and the Appellant’s appeal to the County Court at Guildford was dismissed by Her Honour Judge Nisa. Arnold LJ granted permission for a second appeal on the ground that the case raised an important point of principle as to the extent of inquiries required of local authorities to determine the suitability of accommodation when a homeless applicant is transgender and has a disability.

The Court of Appeal dismissed the appeal and upheld the decision on review. Macur LJ’s judgment, with which Asplin and Coulson LJJ agreed, contains: (i) an interesting consideration of the scope of Shala v Birmingham CC as to the need for a reviewer to seek expert advice (here it was contended that the reviewer should have contacted an LGBT liaison officer from Surrey Police) [52]; (ii) a helpful reconsideration of the interplay between inquiries and the Equality Act 2010 in the light of Pieretti v Enfield LBC, Hotak v Southwark LBC, Haque v Hackney LBC and McMahon v Watford BC [54-58]; (iii) a finding that gender reassignment does not impose a heightened duty under the Public Sector Equality Duty respective to any other protected characteristic [54]-[55]; and a conclusion that treating an applicant “more favourably” for the purposes of the Equality Act did not require the reviewer to achieve a perfect match [60].

The full judgment can be found here.

Kelvin Rutledge QC (Cornerstone) and Adrian Peck (Head of the Employment Team, 12CP Barristers), appeared for Waverley Borough Council.