Clare Cullen considers a judicial review concerning indirect discrimination and applicants who have a medical support animal.
The case is a reminder to local authorities and homeless applicants that judicial review will often be refused if there is an alternative remedy. Also, if a claimant is alleging indirect discrimination under s.19, Equality Act 2010, there needs to be evidence before the court that the requirements under s.19(2)(a)-(c) are met.
Background
AB and CD were a couple who suffered from serious mental and physical health conditions. They had a dog who acted as a “support animal.” They applied to the local authority as homeless and a full homelessness duty under s.193(2), Housing Act 1996 was accepted. On request, they provided medical evidence from a psychiatrist about their need for a support animal.
Initially AB and CD were accommodated separately.
Judicial review proceedings
They then applied for judicial review alleging:
- a breach of the main homelessness duty under s.193(2), Housing Act 1996
- that the local authority operated policies that applicants “must provide medical evidence to demonstrate a need to be housed with an animal” and “not to maintain a housing stock which allows households with pets”
- that these local authority policies amounted to indirect discrimination in breach of ss.19 and 29, Equality Act 2010; and
- that the local authority had breached the public sector equality act duty (PSED) under s.149, Equality Act 2010.
The local authority accepted it had previously been in breach of s.193(2), Housing Act 1996 in respect of the accommodation originally provided but contended that they were now in suitable accommodation together with their dog.
Judgment
Breach of s.193(2), HA 1996
Except for the admission about the historical breach of s.193(2), Housing Act 1996, the claim was dismissed.
The court held that once it was clear that the local authority considered that AB and CD were now in suitable accommodation, an amendment to the pleadings was required if the applicants wished to contend that the new accommodation was unsuitable.
Furthermore, AB and CD had an alternative remedy by way of a statutory review under s.202, Housing Act 1996.
Also there was insufficient evidence before the court that the local authority had acted irrationally in considering that the new accommodation was suitable.
Indirect discrimination
The claim for indirect discrimination was dismissed.
There was no evidence that the policy requiring medical evidence put those with disabilities at a particular disadvantage under s.19(2)(b), Equality Act 2010 or that AB and CD were put at a particular disadvantage under s.19(2)(c), Equality Act 2010.
Even if there had been evidence, the policy was proportionate as it was entirely justifiable to give priority to those who could demonstrate medical need.
The local authority did have a series of practices in identifying temporary accommodation including having several regular providers that did not accept dogs and ad hoc arrangements with hotels and hostels some of which did accept dogs.
Whilst it could be accepted that a policy of refusing to allow people to be housed with animals would put those with disabilities at a particular disadvantage, that was not the policy relied upon. There was no evidence of how the local authority’s practice operated generally or how it impacted those with disabilities to satisfy s.19(2)(b), Equality Act 2010.
PSED – public sector equality act duty
The claim for breach of PSED was dismissed.
The challenge related to how the local authority had assessed suitability. The court had already considered this in relation to the s.193(2), Housing Act 1996 challenge.
It was impossible to see how there could be a breach of the PSED where it was accepted that the previous accommodation was unsuitable. In respect of the new accommodation, the challenge was dismissed for the same reason as the breach of s.193(2), Housing Act 1996 challenge.
Further, AB and CD’s disabilities were adequately considered.
Read the judgment in full in R (AB and CD) v Westminster City Council [2024] EWHC 266 (Admin)