Gender reassignment and adequacy of inquiries in homelessness cases

14 April 2022

Alexander Campbell discusses the Court of Appeal judgment in Biden v Waverley Borough Council.  The case concerned gender reassignment and local authority homelessness decisions and the type of inquiries a local authority ought to make in a case raising LGBT+ issues.

The impact of the case for local authorities

 Local authorities will welcome this decision as upholding the freedom which they have to decide for themselves the level and type of inquiries that a particular homeless applicant’s circumstances call for.

The decision demonstrates that a local authority’s homelessness decision should not be interfered with by a court simply because the court would have given greater weight to a particular Equality Act consideration raised by the homeless applicant. The Court of Appeal explicitly recognised that point at paragraph 56 of its judgment.

The decision of the Court of Appeal reinforces the long-established principle that when a local housing authority is making inquiries into a homelessness case, the scope and scale of those inquiries is fundamentally a matter to be decided by the local authority.

The Court of Appeal’s decision in Mrs Biden’s case upholds the principle from R v Royal Borough of Kensington and Chelsea, ex p Bayani (1990) 22 HLR 406 that the courts should only interfere if the deficiency in the inquiries made by a local authority is so striking that no reasonable local authority could have been satisfied with the adequacy of the inquiries made.

More broadly, the Court of Appeal rejected any suggestion that the protected characteristic of gender reassignment creates a higher duty on a local authority than other protected characteristics under the Equality Act 2010.

Local government practitioners will note from this that as long as they treat the issue of gender reassignment with the appropriate “very sharp focus” which is required by the public sector equality duty "PSED" in section 149 of the Equality Act 2010, then they are not required to give it any greater treatment than other protected characteristics.

The background

Mrs Biden occupied a property under an assured shorthold tenancy but had to leave after being served with a notice requiring possession under section 21 of the Housing Act 1988.

Mrs Biden applied for homelessness assistance to the council. She has two protected characteristics under the Equality Act 2010: she is disabled and has undergone gender reassignment.

The council made a final offer of accommodation in the form of a housing association flat approximately 1 mile from the accommodation which she had had to leave.

Mrs Biden refused the offer of accommodation but nevertheless sought a review of its suitability under section 202 of the Housing Act 1996. As part of the review process, Mrs Biden stated that the property was not suitable in part because, as a transgender woman, she had been the victim of many incidents which had left her “frightened and concerned to be in remote unfamiliar areas”.

The review officer made inquiries of a local police community support officer (PCSO) and of a local GP practice about circumstances for transgender people in the local area. The PCSO reported no evidence of LGBT+ hate crime in the area and advised that it would be safe for a transgender woman to live in the area.

The review officer reached a decision upholding the original decision that the property was suitable.

Mrs Biden appealed that review decision to the County Court under section 204 of the Housing Act 1996  but her appeal was dismissed. She issued a further appeal to the Court of Appeal.

What the court decided

The issue for the Court of Appeal was whether “the original decision was right, or at least one the decider was entitled to reach” (per Danesh v RB Kensington & Chelsea [2007] HLR 17 at [30]). Therefore, the Court was concerned with the review officer’s decision, not the appeal decision of the County Court.

Mrs Biden’s lawyers argued in the Court of Appeal that when the review officer was making inquiries about whether there was hate crime towards transgender people in the local area, such inquiries should have been made to a police LGBT liaison officer rather than just to a local PCSO.

The Court of Appeal rejected that argument. The court reiterated the longstanding principle that the scope and scale of inquiries to be made by a local authority in a homelessness case is a matter for them and the courts should only intervene if no reasonable local authority could have been satisfied on the basis of the inquiries (per R v Royal Borough of Kensington and Chelsea, ex p Bayani (1990) 22 HLR 406).

The court did not accept that an LGBT liaison officer for the county’s police force would necessarily have greater knowledge of the situation on the ground than the local PCSO who would have better local knowledge. The court noted that in a witness statement which Mrs Biden produced for the Court of Appeal, she did not include anything which contradicted what the PCSO had told the review officer about LGBT+ hate crime in the local area.

The court held that the review officer had given very sharp focus to Mrs Biden’s personal circumstances, as required to do by the public sector equality duty (PSED) in section 149 of the 2010 Act and had made reasonable and relevant inquiries.

Accordingly, Mrs Biden’s appeal was dismissed.

Read the judgment in full in Biden v Waverley Borough Council [2022] EWCA Civ 442 on Bailii.

This analysis was first published on Lexis®PSL.