Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent case of Biden v Waverley Borough Council  EWCA Civ 442.
This case considered the sufficiency of inquiries made by a local authority to determine the suitability of accommodation offered under section 189B Housing Act 1986 to a homeless applicant with ‘protected characteristics’ of disability and gender reassignment.
Ms Biden has the protected characteristics of gender reassignment and is disabled having osteoarthritis to the right knee, depression, and anxiety. Ms Biden presented as homeless to Waverley Borough Council (“WBC”) in August 2019. In November 2019, WBC concluded she was homeless and eligible for assistance.
Ms Biden subsequently rejected a final offer of accommodation offered by WBC of a ground floor self-contained flat in a purpose-built low-rise. The flat was situated approximately 0.9 miles away from her existing accommodation. Solicitors on her behalf made representations to WBC including that she had been the victim of a number of incidents that had left her frightened to be in remote unfamiliar areas and that the property offered was not suitable for her physical and mental health needs.
Ms Donaldson, a housing options manager for WBC, conducted a review. In the course of her review, Ms Donaldson spoke to a local police support community officer (“PCSO”) regarding the presence of any transgender hate crime in the relevant area. Her inquiries revealed that reported crime in the area was low, there was no evidence of LGBT+ hate crime and the PCSO considered that it would be safe for a transwoman to move into the street. Having considered all the available information, Ms Donaldson was satisfied that the final offer of accommodation was suitable for Ms Biden. Ms Biden’s appeal to the County Court was dismissed but she was granted permission for a second appeal.
The decision of the Court of Appeal
The relevant issue for the Court was whether the original decision of Ms Donaldson was right, or at least one the decider was entitled to reach . The Court had to decide a narrow point, namely whether Ms Donaldson should have made inquiries of a LGBT liaison officer rather than the PCSO on matters relating to the presence of gender reassignment hate crime.
Macur LJ’s judgment, with which Asplin and Coulson LJJ agreed, dismissed the appeal and upheld the original decision. The Court outlined that the inquiries that were required to be made were those necessary to make a decision fairly regarding the suitability of the property. Subject to this, the “scope and scale” of the necessary inquiries to be made by a local housing authority are a matter for them .
It could not be said in this case that no reasonable reviewing officer would have determined the inquiries to be sufficient nor could they be categorised as inadequate [51-53]. The Court rejected any statutory basis for a contention that gender reassignment as a protected characteristic created a heightened duty on the party of the housing authority in respect to PSED [54-55]. The Court also considered that any attempt to categorise the inquiries made by Ms Donaldson as displaying disregard for the PSED was entirely without merit [59-60].
Accordingly, the appeal was dismissed.