Scarce resources are no excuse for discrimination

A mother stuck living next door to a neighbour who sexually abused her daughter has won her case against Westminster City Council, after the High Court said the council’s housing policy discriminates against women.

The abuse and its consequences have had a devastating impact on the family. The daughter spent time sleeping rough to avoid her home and had been self-harming, taking drugs and was excluded from school. It is now over two years since the mother started looking for another place to live and the daughter moved abroad to live with relatives for her own safety. Both mother and daughter have struggled with depression and suicidal thoughts.

The mother lives in social housing in a borough next to Westminster, and started her search for another home there. The family has close connections with Westminster, so after her borough was unable to find any suitable accommodation, she applied to Westminster City Council.

The council rejected her application in line with its housing policy, citing demand for housing from priority groups. It added that accepting her application would see her jump to the front of a 10-year waiting list for housing.

The claimant argued that Westminster’s policy treated applicants from within and outside the borough differently, and that this discriminated against women, because women are more likely to need to move out of their borough to escape abuse. Westminster maintained that the policy was lawful, emphasising that its very limited housing stock means it cannot provide for everyone in need.

The court found that Westminster’s housing policy did treat people applying from outside the borough differently. The policy gave more “points” to existing Westminster tenants and included specific factors to be considered, such as safety and the risk of violence. These factors weren’t included in the policy for people applying from outside the borough, who the policy said “will not be rehoused out of turn”.

But did this different treatment amount to discrimination? Under the Equality Act 2010, it is usually unlawful to discriminate against someone on the basis of a protected characteristic, such as religion, disability or sex. Treating someone less favourably because of a protected characteristic is direct discrimination – for example, deciding not to hire someone because they are a woman. In contrast, indirect discrimination happens when a policy, criterion, or practice disadvantages a group of people with a protected characteristic, even if you are treating everybody the same. For example, setting a minimum height requirement for a job will indirectly discriminate against women because, on average, women are shorter. This kind of discrimination can be lawful if it has an “objective justification”, such as a genuine business need that can’t be resolved in any other way.

Using evidence from the Pan-London Housing Reciprocal Scheme, the court found that Westminster’s policy was indirectly discriminatory against women. That report showed that 90% of referrals for a transfer to another borough come from women and girls, with 63% fleeing some form of violence against women. The fact that women are more likely to need to move boroughs to escape abuse means that the policy disadvantaged women, and so was indirectly discriminatory. Westminster did not supply any evidence to justify such discrimination, and as a result, it was found to be unlawful.

The court also found that the council had failed in its Public Sector Equality Duty. This requires public bodies to make sure they are promoting equality. The court considered multiple pieces of statutory guidance, which specifically referred to the need to consider applications from outside boroughs when allocating housing, in order to protect victims of domestic abuse. But the Court found no evidence that Westminster City Council had considered its duty to promote equality in relation to its policy, which was unlawful.

Westminster must now reconsider the claimant’s application – treating her on the same basis as someone who is already a Westminster tenant. It’s yet to be seen if this will allow the family to move out of their dire situation.

This case shows that decision makers must avoid discrimination, even when things are tight. It also highlights serious concerns about how our country’s vital resources, such as social housing, have been allowed to deteriorate so badly. Waiting lists of 10 years and more are leaving some of the most vulnerable out in the cold. This is a problem that the High Court alone cannot fix.