EWJ 60 April 2025 web - Journal - Page 26
Disability, Duality,
Reasonable to Occupy
by Catherine Rowlands
What is the correct route to challenge a decision of the local authority that you consider amounts
to disability discrimination? This was the question recently tackled by Fordham J in R (RZH) v
London Borough of Sutton.
Fordham J rejected both claims. The decision that
RZH was not homeless was one that Sutton was lawfully entitled to reach. He noted that the word “need”
meant different things in different contexts. There
was the concept of “housing need” under the allocations scheme, which would determine what size of
house the applicant could bid for, and a more general
concept of what a household needs; accommodation
that did not meet the household’s needs did not
mean that the accommodation was not reasonable to
continue to occupy.
The Case
RZH and her son, DTU, both have autism, and RXH
has sleep apnoea. RZH has a two-bedroom flat, with
a shared garden, where her landlord is a housing association. She considered that it was too small for her
and DTU and so applied to go on Sutton’s housing
allocations scheme. She then had a daughter, and was
entitled to bid for a three-bedroom property on the allocations scheme. However, she realised that she was
not getting close to being allocated a house with a garden, which is what she wanted for her and her children. In an avowed attempt to get higher up the
waiting list, she applied as homeless, contending that
the accommodation was not reasonable for her to continue to occupy. Sutton rejected this, and upheld the
decision on review, despite the representations made
on her behalf that she “needed” three bedrooms and
that the “usual bedroom standard should not apply”.
If Parliament had intended “homeless” in s.175 to mean meeting “the housing needs of the applicant”, that is what s.175(3)
would have said.
He rejected the submission that there was a PCP.
Sutton had simply applied the statute to the circumstances of the household and had reached a lawful decision; there was nothing to support the contention
that the reviewing officer had mechanically applied
the overcrowding rules. RZH had not identified a PCP
that had affected the decision she complained of.
She appealed against that decision to the County
Court under section 204 of the Housing Act 1996. She
also brought a claim for judicial review of the same decision. Permission for judicial review was granted and
the section 204 appeal transferred to the High Court.
Scope of section 204 and the Adesotu exception
Fordham J took the opportunity to summarise the
scope of section 204 and of the Adesotu exception:
But why did she need to bring two claims against the
one decision? Her grounds of appeal were what might
be called conventional grounds for quashing the decision of the local authority that she was not homeless.
She alleged that the decision of the local authority that
she did not need three bedrooms was irrational and
gave inadequate weight to the views of experts that
the household needed three bedrooms.
Drawing all this together, this is the position as I see it:
1. Points of law concerning or relating to the lawfulness of a
1999 Act s.202 review decision should in principle be determined in the county court by way of s.204 appeal (Bano). A
claim that a review decision is unlawful because of a PSEDbreach contravention of the 2010 Act falls within the s.204
appeal (Hotak). Transferring a s.204 appeal to the High
Court is available, in particular for points of general public
importance or issues which the county court considers it
cannot determine for itself (James32).
Her judicial review challenge was a claim under the
Equality Act 2010 and relied upon an assertion that
there was a “provision, criterion or practice”, which
put her at a disadvantage as a disabled person. The
PCP she identified was that Sutton would not consider
someone to be homeless with the degree of overcrowding she experienced.
2. A claim that a s.202 review decision is unlawful because
of a discrimination contravention of the 2010 Act has been
held not to fall within the s.204 appeal (Adesotu). But the
county court remains an appropriate forum by s.114(1)
(Adesotu, James26). Where such a claim would be susceptible to judicial review (s.113(3)(a)) it would also be conducive
to CPR Part 8 claim in the county court.
This was the kind of claim that the Court of Appeal
held in Adesotu v Lewisham London Borough Council
[2019] EWCA Civ 1405 could not be brought in the
context of a section 204. The Appellant/Claimant
therefore said that she needed to bring a claim for judicial review to make good her case that the local authority was acting unlawfully; she also claimed
damages.
EXPERT WITNESS JOURNAL
3. Dual-listing to promote the overriding objective with the
parties’ cooperation (CPR 1.3) sensibly ensures that discrimination grounds impugning a s.202 review decision are decided alongside PSED and other appeal grounds.
24
APRIL 2025
