Birmingham City Council’s allocation scheme declared to have unlawfully discriminated against households with disabled members

Birmingham City Council v Nur [2021] EWHC 1138 (Admin.)

The High Court has ruled that Birmingham’s choice based allocation scheme, which allows persons to bid for available accommodation, has unlawfully discriminated against households with disabled members.

The First Claimant is the mother of the Second Claimant who has cerebral palsy and learning difficulties.

The Claimants, represented by the Community Law Partnership, challenged the operation of Birmingham’s allocation scheme, arguing that by “skipping “their bids for housing, even when they were at bidding position number 1,  because there were no children under 18 in the family, the Council indirectly discriminated against households with adult disabled members.

Mr David Lock QC, sitting as a deputy judge of the High Court, agreed. He found that the First Claimant was a devoted mother who provided support for the Second Claimant for a very large part of the time (para 3) and that the operation of the Council’s scheme amounted to indirect discrimination which was not justified and could not be said to be proportionate.

He also found that:

1. The Council was under a duty to make reasonable adjustments under Part 3 of the Equality Act when operating its allocations scheme. There was good reason for the more onerous duties under Part 3 to apply to public bodies exercising statutory housing functions.

2. As the duty to make reasonable adjustments under Part 3 was a pro-active one, the Council’s failure to make any adjustments to meet the needs of disabled people put them in breach.

3. Adjustments such as exempting adapted properties from the policy so that they would not automatically be offered to households with young children or awarding preference for adapted properties to disabled households were described as “eminently reasonable” (para 160).  

Commenting on the fact that the First Claimant had been offered accommodation in exercise of discretion after permission for judicial review was granted, the Judge observed that it was not enough to make an exception for individual disabled households, as the duty was to take reasonable steps to ameliorate the disadvantage suffered by disabled people generally (paras 162-163). 

The judge also noted that the Council had been operating a scheme for the past 4 years without knowing whether, in practice, the scheme achieved the objectives which were set out when the scheme was launched or had unintended consequences which impacted adversely on groups of Birmingham residents with protected characteristics (para 28).

Damages of £4,000 were awarded to the Second Claimant.