Trinity Housing Barrister Summary of Judicial Review Case of R (On the Application Of AK) v Westminster City Council [2024]

Trinity Chambers' Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent Judicial Review case of R (On the Application Of AK) v Westminster City Council [2024] EWHC 769 (Admin).

This case concerned a claim for Judicial Review of a decision of Westminster City Council for rehousing and for Judicial Review of the policy under which the decision was made.

Facts

The Claimant resides in social housing in a borough that borders Westminster. Her child was sexually abused by her neighbour, the abuse was discovered in 2021. The neighbour still lives next door. To avoid the neighbour, the child is living abroad with relatives until alternative accommodation is found. The Claimant and her child experience serious medical issues as a consequence of the situation. They have close connections with Westminster having lived there for six years previously and have family there. The Claimant applied to Westminster for a ‘reciprocal transfer’.

In June 2023, Westminster refused to agree to the request for a reciprocal transfer; the response indicated that by doing so the Claimant would be rehoused more than 10 years out of turn. The refusal was said to be in line with Westminster’s 2023 housing allocation policy. The two relevant sections of the policy distinguished between existing Westminster tenants and reciprocal transfer tenants.

For existing Westminster tenants, the policy outlined, in short, that where there were good management or other reasons (e.g. violence or racial harassment), a transfer on an exceptional basis could take place outside the normal allocation priorities. For reciprocal transfers of those who were not existing tenants of Westminster, in short, this could be agreed on a discretionary basis; this is usually in a crisis or when it is of benefit to the Council and where there is no material loss in terms of available housing stock.

The Claimant contended that the policy was unlawful on several grounds including that it indirectly discriminated against women (ss. 19 and 29 Equality Act 2010), breached the PSED (public sector equality duty) (s.149 Equality Act 2010) and breached s.11 Children Act 2004. The Claimant asked the court to quash the relevant parts of the policy/ declare them unlawful and quash the decision.

Decision

As to the Claimant’s claim, the Court held that:

• The two sections of Westminster’s housing allocation policy were different and the section that dealt with reallocation of existing tenants was more advantageous to an applicant than those who are not existing tenants. Westminster had not provided any evidence as to how it exercised the different discretions under the policy, so the argument they were operated in the same way was rejected [37/ 39].
• The policy was held to be indirectly discriminatory as those who need to move due to violence are more likely to be women than men, and the reciprocal transfer policy effectively excluded people who are not from Westminster from a housing transfer [45-46].
• Westminster had not provided any evidence to justify the discriminatory effect of its policy. Further, the absence of such evidence together with the absence on the face of the policy of any consideration of the PSED duty or recent statutory guidance concerning victims of violence meant that Westminster had not had regard to factors it should have and therefore not complied with its PSED [34/56].
• The decision breached s.11 Children Act 2004 because there was no evidence that the decision-maker had considered the situation of the Claimant’s child; indeed the evidence implied they had considered the long list of people awaiting housing and decided as a matter of principle ‘queue jumping’ was not permissible [60].

Overall, it was found that the decision was in breach of s.11 Children act 2004 and the policy was unlawful on the grounds of indirect discrimination and breach of the PSED. The relevant sections of the policy were not quashed as there were means by which Westminster could make it lawful. Westminster were also required to reconsider the application in a short timescale and when doing so, must treat the Claimant on the same basis as a person who is a tenant of Westminster.