The impact of gender reassignment on the duty to relieve homelessness

Summary

On 1 April 2022, the Court of Appeal (Civil Division) handed down its judgment in Biden v Waverley Borough Council [2022] EWCA Civ 442. Macur LJ dismissed the appeal and upheld the review decision, with which Coulson, LJ and Asplin LJ agreed. The issue in this appeal was the sufficiency of inquiries made to determine the suitability of accommodation offered to a homeless applicant with ‘protected characteristics’ of disability and gender reassignment.

Facts

The facts in this case are the Appellant, Mrs Biden has two protected characteristics: gender reassignment, in that she is a trans woman; and is disabled, having depression, anxiety and osteoarthritis to the right knee. Mrs Biden was considered homeless and eligible for assistance and Waverly Borough Council confirmed they owed her a duty under 189B of the Housing Act 1996 (the relief duty).

Mrs Biden rejected a final offer of accommodation of a ground floor self-contained flat in a purpose-built low-rise block which was let by an independent housing association. The concerns raised in the review of the decision were distance from local amenities and her GP, remote and unfamiliar area, and a lack of consideration for her being a trans woman. Ms Donaldson for the authority concluded that she was “satisfied that there is no deficiency or irregularity in the original decision or in the manner in which it was made…that there is no need to serve a “minded to find” notice on Mrs Biden”.

First appeal

Mrs Biden brought an appeal pursuant to section 204 of the Housing Act 1996 which included a public law challenge to the adequacy of the decision-making process by reason, amongst other things, of failure to make adequate inquiries and a failure of the authority to have regard to its Public Sector Equality Act Duty (PSED).  At first instance, Her Honour Judge Nisa dismissed the appeal.

Second appeal

Mrs Biden appealed the previous decision and it was heard in the Court of Appeal. The appeal was dismissed on the basis that any attempt to categorise the inquiries made by Ms Donaldson as displaying a disregard for the PSED was hopeless. The decision was that Ms Donaldson had given a very sharp focus to Mrs Biden’s circumstances and she made a composite assessment of her protected characteristics and placed them in context with the statutory guidance.

Issue

The legal issue which gave rise to this appeal was whether Ms Donaldson should have made inquiries she deemed necessary on matters relating to the incidence of gender reassignment hate crime in the area of the accommodation offered to Mrs Biden to a Lesbian, Gay, Bisexual, Transgender (LGBT) liaison officer rather than the PSCO?

Decision

Macur LJ, with whom Coulson, LJ and Asplin LJ agree, sets out the reasons why this appeal was dismissed firstly in paragraph 46 of the judgment as:

However, assuming for the sake of argument that the LGBT officer had a better appreciation of the problems facing the transgender community in general. I find it difficult to understand the argument that an unidentified “Surrey Police” LGBT liaison officer would have greater knowledge of the situation on the ground than would the local PCSO”.

Further paragraph 47 of the judgment reads as follows:

The highest that Mr Straker puts it is that the making of such inquiries would engender confidence in the process. That hopefully is a by-product but is not the purpose of the review procedure. The inquiries that were required to be made are those necessary fairly to make a decision regarding the suitability of accommodation for Mrs Biden”.

On the facts, it was held that Ms Donaldson had due regard to the possibility of victimisation and took into account that private landlords may positively discriminate against transgender individuals, and this was capable of being regarded as more favourable treatment of Mrs Biden’s application.

Comment

This appeal took into consideration two interesting legal issues from previous cases. Firstly, Shala v Birmingham CC [2007] EWCA Civ 624was discussed and it was held that comparing the LGBT liaison officer and PCSO is not the same as comparing a medical expert and a medical adviser. Secondly, the relationship between inquiries and the Equality Act 2010 was discussed regarding Pieretti v Enfield LBC [2010] EWCA Civ 1104and in this instance, the court found that a protected characteristic of gender reassignment does not impose a heightened duty under the PSED. Perhaps a sensible decision to make to instil that all protected characteristics should carry the same weight.

This decision provides guidance on the approach that should be taken when there is a balancing act between taking into account an applicant’s protected characteristic and its impact on the authority’s PSED. It must be noted that where information and/or representations were not placed before the reviewing officer, but available to the homeless applicant, this should not influence the appeal as the process is to challenge the legitimacy of the review on the information they had. It will be interesting to see how this case is applied in the future, considering the Women and Equalities Committee in their report on enforcing the Equality Act found that it was not fit for purpose.

To read more about Tanya, please see her Chambers profile here.