Carly Jayne Willott, R (on the application of) v Eastbourne Borough Council

This judgment follows the full hearing of the Claimant’s application for judicial review of the Defendant’s decision, on review, dated 4 January 2022, by which it upheld its original decision, made on 9 February 2021, that the Claimant ‘does not qualify to join the housing register due to the ‘serious anti-social behaviour’ at her tenancy [address supplied]’. The challenge is advanced on six grounds, but, broadly put, on two alternative footings. The first is a challenge to the lawfulness of a rule which is said to disqualify applicants who have a poor history of anti-social behaviour, including those who are disabled within the meaning of the Equality Act 2010 (‘the EqA’), from joining the social housing waiting list. Should that challenge fail, the Claimant challenges the lawfulness of the Defendant’s application of the rule in her case. The challenge comes about in the following circumstances.

With effect from 14 December 2015, the Claimant and her family occupied a house in Royal Sussex Crescent, Eastbourne, initially under an introductory tenancy and, subsequently under a secure tenancy within the meaning of section 79 of the Housing Act 1985 (‘the HA 1985’). An initial allegation of anti-social behaviour was made on 13 June 2016. A further complaint was made on 14 June 2018, following which the Defendant sent the Claimant a letter enclosing an acceptable behaviour contract. Notice seeking possession was served on 7 June 2019 and a claim for possession was issued on 17 July 2019. On 9 January 2020, the Defendant issued a claim for an injunction in respect of dogs at the property and a final injunction was granted on 28 September 2020, requiring that identified dogs be controlled, and be removed from the house should they bark for longer than 10 minutes. The order did not prevent the Claimant from keeping dogs.

On 27 January 2020, Ms Kim Barnes, a senior caseworker employed by the Defendant, made a safeguarding referral, stating that she had concerns about the Claimant’s mental health. On 10 March 2020, Professor Fox, a professor of clinical psychiatry, completed a report on the Claimant, the key part of which read as follows:

On numerous occasions, the Police had attended at the Claimant’s property. Towards the end of March 2020, she had left the property, following complaints of anti-social behaviour. On 1 April 2020, the Police attended again, following reports of concerns about her safety on her return. Those had related to the behaviour of her former partner, Mr Walters, who has since died. The Police found Mr Walters at the house and he was served with a domestic violence protection order on 3 April 2020, the conditions of which banned him from contacting the Claimant, directly or indirectly. Nevertheless, Mr Walters was found by Police at the Claimant’s house on 11 April 2020, and arrested, after a forced entry. On 1 May 2020, he and the Claimant were arrested at the property, she for affray and he for assault. Mr Walters was arrested at the property, once again, on 8 May 2020, for assaulting the Claimant. Bail conditions were set to prevent him from entering Eastbourne, or contacting the Claimant before 26 June 2020.

On 8 June 2020, Mr Walters was found by Police and arrested at the house. He was charged with assaulting a police officer and breach of his bail conditions. The Claimant was also charged with various offences and the dogs were removed from the house. On 18 June 2020, she pleaded guilty to those offences (assault and obstruction of police officers, and being in charge of a dog dangerously out of control). On 16 June 2020, an order was made requiring that all three of the Claimant’s children reside permanently with their father. On 1 August 2020, Mr Walters was found by Police hiding in an upstairs cupboard at the Claimant’s house. The Claimant’s dogs were released by Police into the care of her mother, at the beginning of August 2020. On 3 September 2020, the Defendant received a report that dogs could be heard at the Claimant’s house. On 28 September 2020, following a two-day trial, the Deputy District Judge declined to make a possession order, on the basis that the Defendant had not, at that stage, discharged its public sector equality duty.

On 24 November 2020, the Claimant applied, online, to join the Defendant’s housing register. That application was rejected by letter dated 9 February 2021, which, it would appear, did not come to the Claimant’s attention at that time. The Defendant relied upon the terms of its allocation policy (considered further below) in concluding that the Claimant did not qualify to join the register, going on to state, ‘We are aware that Eastbourne Homes, as the managing agent for Eastbourne Borough Council, has recently taken your case to court due to Anti-Social Behaviour (ASB) perpetrated by yourself and a visitor to your home. The allocations team are also aware possession was not awarded to the landlord, but Eastbourne Homes have appealed this decision and are still awaiting an outcome. Since the court hearing you have been served with a Community Protection Warning Letter due to further ASB. When the appeals process is completed, you may ask for a review of the decision to refuse your application to join the housing register.’

On 18 August 2021, on appeal, His Honour Judge Simpkiss found that the Deputy District Judge had been wrong to conclude that the Defendant had not discharged its public sector equality duty, and granted an order for possession by 29 September 2021. In the event, the Claimant was evicted from the property on 15 March 2022.

On 1 October 2021, the Claimant requested a review of the Defendant’s original decision. On 16 December 2021, she approached the Defendant, requesting assistance as a homeless applicant, pursuant to Part 7 of the Housing Act 1996 (‘the HA 1996’). She stated that she was homeless from her parents’ address, following an incident with her father, and that bail conditions prevented her from residing there. On 23 December 2021, the Claimant was placed by the Defendant in interim accommodation, under section 188 of the HA 1996.

As previously noted, the decision taken on review, challenged in these proceedings, was dated 4 January 2022.

In his sixteen-page letter upholding its original decision, the decision-maker, Mr Gary Hall, Head of Homes First, relied upon the Defendant’s allocation policy, dated June 2018, identifying the relevant aspects of that policy as being:

The decision letter went on to note that, over a prolonged period, the Claimant had committed a number of acts which could be considered to be “anti-social behaviour”, which had been the subject of possession proceedings by the Defendant. In summary, it was said, between June 2016 and June 2019, the Defendant had recorded 40 incidents of the Claimant, or members of her household, causing a nuisance or annoyance at the property, on the grounds of which the Defendant had been granted an outright possession order.

Having set out the grounds for review, Mr Hall stated his conclusions, summarised as follows:

It will have been noted that the review decision made reference to a report by SWIFT specialist family service. On 29 April 2019, the Claimant had been assessed by Dr Leslie Valon-Szots, Principal Clinical Psychologist and Amina Ouchai, Assistant Psychologist, following a referral for screening to explore possible autistic spectrum condition in order to help professionals better understand her needs. They concluded that:

As a preliminary matter, it will be necessary to determine the proper construction of the category (d) rule within the Defendant’s allocation policy. Subject to that, the grounds of review are as follows:

On the point of construction, it is the Defendant’s case that disqualification under rule (d) requires that the Defendant be satisfied both that the applicant, or a member of his or her household, be guilty of unacceptable behaviour and that the behaviour is serious enough to render him or her unsuitable to be a tenant. The rule is said to be framed in a way which permits the Defendant to consider the applicant’s personal circumstances and requires the exercise of judgement as to whether an applicant is unsuitable to be a tenant, including by reference to his or her personal circumstances. That was underscored by the reference in the rule to behaviour which would have entitled the Defendant to a possession order under the HA 1985, which would itself require a court to have regard to the particular tenant’s circumstances when determining whether the order was reasonable. The category (d) rule provided for each case to be considered on its own merits and admitted of a fresh application following a change of circumstances, each indicative of a discretion. The fact that the wider scheme precluded those who have a history of anti-social behaviour from bidding under certain policies indicated that such individuals could qualify under other parts of the scheme, which also contained a residual discretion for direct lets, in exceptional circumstances.

As to the Grounds of Review:

In any event, contended the Defendant, section 31(2A) of the Senior Courts Act 1981 obliged the Court to refuse to grant relief, because it was highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred. Grounds one to three argued for an interpretation of the allocations policy which was contrary to the Claimant’s interest; to the effect that the Defendant had no discretion to consider her personal circumstances. If that were right, it was highly likely that the outcome would not have been substantially different, as the Defendant had in fact proceeded on the basis that it had a discretion. Ground six asserted that the applicable policy was unclear. Were that to be made out, it would be highly likely that the outcome for the Claimant would not have been substantially different.

In response to that contention, the Claimant asserts that, were her claim to succeed on the relevant grounds, the Court would, presumably, quash the relevant parts of the scheme, and the Defendant would be required to reformulate its allocations rules in order to avoid a blanket policy. The Claimant’s application would then fall to be considered under the new, more flexible scheme. Were that application to succeed, the Defendant would be bound to award a ‘priority date’ commensurate with the date on which her original application had been made, and she would be well-placed to secure social housing relatively quickly, particularly as a member of a ‘reasonable preference’ group. It could not be said that it was highly likely that the outcome for the Claimant would not be substantially different.

In support of her claim, the Claimant relied upon the witness statement of her mother, to which the SWIFT assessment was exhibited, together with a newspaper article, published in August 2022, with which she had been provided by the Claimant’s solicitors, written by the Bureau of Investigative Journalism (‘the BIJ’) and said to demonstrate that individuals with mental illness were very likely to commit the form of anti-social behaviour which would satisfy rule (d) of the Defendant’s allocations policy. The thesis of that article was that mentally ill people were being sent to prison for breaching antisocial behaviour injunctions, which “experts” said that they were unable to follow. It was said that the Ministry of Justice did not collect any data on when and how antisocial behaviour injunctions were used, or on what happened when they were breached. Thus, the BIJ had analysed 156 court judgments in which an injunction had been granted by reference to anti-social behaviour, published between 2019 and mid-2022, to create a ‘first of its kind’ database which logged the gender of the individual concerned; the date of the injunction; details of the breaches; the type of sentence imposed and its duration. Having recorded its analysis, to the effect that the average custodial sentence was 86 days, the article continued, ‘Andrea Albutt, the president of the Prison Governors Association, told the Bureau that such sentences are pointless. “Invariably the reason why the person has the antisocial behaviour injunction is because of their mental health”, she said, “and if they come [to prison] for short periods of time, we don’t have them long enough to stabilise them [and] their antisocial behaviour becomes worse. They can become very psychotic when they come into prison and we do not have the facilities to manage them. Putting people in prison for short periods of time for a civil offence is just crazy.” The writer noted that the BIJ had found 11 instances in which a person’s mental health issues had been mentioned explicitly by the judge who had imposed a custodial sentence and that people in court facing prison sentences included those with personality disorders, debilitating OCD and schizophrenia. ‘“We see desperately ill people produced to court”, said Rosaleen Kilbane, a partner at the Community Law Partnership. “The big flaw of the system is it presumes people committing antisocial behaviour are doing so deliberately and will respond to the injunction. It is not at all uncommon for people to go to prison.”’

The Claimant further relied upon part of a report of the Disability Rights Commission (‘the DRC Report’), entitled ‘Disabled people’s experiences of anti-social behaviour and harassment in social housing: a critical review’, dated August 2007. At that time, the Disability Discrimination Act 1995 was in force. Within that report, the authors stated their view that, ‘Whilst our findings are not conclusive, they do point to evidence that the subjects of antisocial behaviour interventions often have mental health problems, learning difficulties, and neurological disorders.’ In chapter 5 of their report, the authors noted the lack of data available at national level, with the consequence that it was impossible to estimate the percentage of anti-social behaviour interventions issued to disabled people and to assess evidence of disproportionality. ‘anecdotal evidence, particularly in relation to ASBOs suggests, however, that people with particular impairments are disproportionately more likely to be recipients of measures designed to tackle anti-social behaviour. ASBOwatch, ASBO concern, BIBIC and NAPO have monitored the use of ASBOs, and have documented instances in which the granting of an ASBO appears to be a disproportionate and inappropriate response to problem behaviour. NP (2005) has collected a number of cases studies which point to a potential misuse of ASBOs, 13 of which related to cases involving children and young people with neurological disorders, including ADHD, Asperger syndrome (AS) and autism…. As the figures above indicate, ADHD appears to be particularly prevalent among the young people issued with ASBOs with 58 out of the 137 (42%), as cases reportedly involving a child with the condition.’ Later in the report, under the heading ‘Disabled people’s experiences of being subject to anti-social behaviour interventions’, an account was given of certain work undertaken in 2003 and 2005, which had sought to elicit families’ feelings regarding their experience of the acceptable behaviour contract (‘ABC’) process. The research had involved 13 young people from 10 families, nine of which lived in social rented housing. The young people in question had been placed on a contract for a range of anti-social behaviour. During interviews, research participants had been given the opportunity to raise issues which had most concerned them regarding their experiences and feelings. Mental health problems were said to have dominated their accounts and the authors professed to having been ‘continually disturbed’ by the number of young people who had been subject to ABCs and had mental health problems and learning difficulties. Over half of those who were subject to contracts had had relatively serious mental health, or personality disorder, problems and related learning difficulties, for which some had received psychological/psychiatric support. Officially diagnosed ADHD for which children were receiving psychological and medical support had emerged as a central health issue. The report also referred to research reviewed over a period spanning 1997 to 2005, which had pointed to a strong and robust link between ADHD, associated personality factors, such as restlessness, impulsive behaviour, and difficulty maintaining concentration, daring, clumsiness and anti-social behaviour in childhood and adolescence, which tended to persist into adulthood. That said, it was said to be not yet clear whether anti-social behaviour was a true risk effect of ADHD, or whether the association of ADHD with later anti-social behaviour arose because of some other associated factor. Certain authors had noted that anti-social behaviour in children having ADHD was linked with genetic factors, family adversity, and peer rejection, suggesting that, despite the increased risk of anti-social outcomes in those having ADHD, relatively little was known about the factors which contributed to, mediated, and moderated the link between the two.

The DRC Report’s conclusions included the following: ‘ADHD in particular is emerging as a central issue in debate about disability and anti-social behaviour (Thapar et al, 2006), and, on the basis of our review, we can say with some degree of certainty that a large percentage of those subject to anti-social behaviour measures appear likely to have, or have a diagnosis of, ADHD. Given the studies which report the risk effect of ADHD, this is perhaps not surprising.’

In her witness statement, the Claimant’s mother stated her view that the picture painted of her daughter by the Defendant was not very accurate and that, when the Claimant’s case had gone to trial, the Defendant had been ordered to select 12 specimen allegations, many of which had been dismissed. Her evidence was that the Claimant’s children no longer lived with her; that the Claimant continued to struggle with major problems in her life; that the Claimant’s dogs lived at her parents’ home and were happy and well-behaved; that the Claimant took medication for depression; anxiety and to enable her to sleep at night; that she was supposed to have contact with the STAR drug and alcohol service but that that could be ‘a bit wishy washy’ as case workers changed regularly; that the Claimant drank occasionally, but not to excess; and that the Claimant largely spent the day with her mother and stayed at home in the evening. It was her long-term goal to have her children returned to her care and she was undertaking parenting assessment by Social Services.

The Defendant relied upon the witness statement of Mr Hall. Mr Hall gave evidence of his 30 years’ experience working in social housing. He recorded his understanding that the allocations policy had been introduced in June 2018, having been subject to extensive public and internal consultation, and been through the appropriate governance processes prior to its publication. From 2014, he said, the predecessor policy had included a similar disqualification provision for applicants ‘whose unacceptable behaviour [was] serious enough to make them unsuitable to be a tenant’. The only remarkable change to the provision made by the present policy was the statement that each case would be considered on its own merits.

On the understanding that the interpretation of the policy was a matter for the court, Mr Hall considered it important to set out the way in which the Defendant had interpreted and applied that policy to date. He confirmed that there was no unpublished guidance, or procedures, to be considered, and that the test applied derived from the published policy itself. He stated that, when making decisions as to whether an applicant met the qualification criteria, it was necessary to apply a two-stage approach. First, had the applicant (or member of his or her household) been guilty of unacceptable behaviour? Secondly, was the applicant’s unacceptable behaviour serious enough to make him or her unsuitable to be a tenant? The exclusion only applied if the answer to both questions was yes, such that there was no blanket disqualification simply because an applicant or member of the household had been guilty of anti-social behaviour. When considering an application from an applicant where anti-social behaviour was involved, the first question required assessment of whether the applicant or household member had been guilty of some level of unacceptable conduct. The second element required consideration of a number of factors, because the Defendant was tasked with assessing whether the behaviour was serious enough to render the applicant unsuitable to be a tenant. That was said not to be a simple task because, in some cases, the circumstances surrounding any unacceptable behaviour, as well as the applicant’s then current circumstances, would not necessarily mean that s/he was unsuitable to be a tenant. In others, the behaviour might be so concerning and serious that the applicant would be unsuitable.

It was Mr Hall’s evidence that the policy gave some guidance on what could be considered when determining whether the applicant’s behaviour was unacceptable for the purposes of rule (d). That included having regard to whether it would have entitled the Defendant to a possession order under the HA 1985, requiring an assessment of whether, faced with the same behaviour, the Defendant would be able to satisfy the court that relevant grounds were made out, but also that it would be reasonable for a possession order to be made. On his evidence, the assessment required broad consideration, including of any other circumstances which might impede the Defendant’s entitlement to a possession order, for example of any issues arising under the EqA. The policy included provisions limiting the ability of a qualifying applicant to bid for certain properties, necessarily acknowledging that there would be qualifying applicants who had a history of unacceptable behaviour. The circumstances surrounding each application could be different and would require individual attention on their own merit, as the policy recognised. An applicant’s ability to make a fresh application envisaged situations in which a change in circumstances would render the applicant suitable to be a tenant, notwithstanding evidence of unacceptable behaviour. The policy provided for a residual discretion on the part of the Defendant, ‘retained in exceptional circumstances’, to allow for a direct let to an applicant who did not qualify under the policy. Mr Hall did not believe that any situation had arisen in which the Defendant had considered, or been asked to consider, exercising that discretion in favour of an applicant who had not qualified under the policy.

Regarding the decision which he had taken on review, Mr Hall stated that he had had access to the evidence which had been available in the possession proceedings, some of which he exhibited to his statement, and which he had considered when carrying out the review. He had also had background knowledge of the case in general, having been consulted on it in connection with budget. He had been provided with a copy of the evidence of Professor Fox. He had not considered rule (d) to have been a blanket policy. He had agreed with the original officer’s assessment, and had considered the circumstances as they had stood both at the time of the original decision, and at the time of review. The decision-making had been aided, to a degree, by the fact that the Claimant had been a secure tenant, who had been subject to a possession order by reason of her unacceptable behaviour, and that of others in her household. It was that persistent unacceptable behaviour, which had satisfied the court that the Defendant was entitled to an order for possession, because the relevant grounds had been made out and it was reasonable for an order to be made. The court had also held it to be proportionate, for the purposes of section 15 of the EQA, for a possession order to be granted and, on appeal, it had been held that the Defendant had complied with its public sector equality duty. Thus, an independent tribunal had considered all of the factors which a reviewing officer would have been expected to consider and determined that a possession order was reasonable and proportionate, a decision upheld on appeal. Following the original decision, there had been further incidents of similar unacceptable conduct, such that, at the time of his review, there had been nothing to suggest that the Claimant’s conduct had improved, or would be likely to do so.

Mr Hall stated that he had considered the particular exclusion to have been operated flexibly. In the year preceding the decision, only one other applicant had been disqualified under the relevant part of the policy. There had been numerous applicants, including those having protected characteristics, who had had a history of anti-social behaviour, but had been allowed to qualify for the housing register. In his decision, he had stated that disqualification from the register on the particular ground was used only “in extremis”. By that, he had meant that it was used only in extreme cases in which the unacceptable behaviour was serious and significant and there were no positive signs of the applicant otherwise being a suitable tenant. He had been satisfied that the Claimant’s was such a case, because her conduct had comprised serious and persistent anti-social behaviour, which had been continuing at other properties at the time of review and had been critical in assessing her unsuitability to be a tenant. Mr Hall stated that it was clear from his decision letter that he had considered a wide range of personal circumstances, relating not only to the Claimant’s conduct, but to that of others in her household. In particular, he had considered the Claimant’s disability and, on the basis of the available medical evidence, had formed the view that she needed to address her alcohol use, if her behaviour were to improve. It had also been clear from that evidence that the Claimant had been offered rehabilitation, but had refused it. As the decision-making process which had resulted in the decision taken had reflected a wider construction of rule (d) than that for which the Claimant was contending, he could safely say that the same decision would have been reached on the Claimant’s narrower interpretation of the rule to be applied.

Mr Hall exhibited to his statement the equality impact assessment which had been carried out at the time of introduction of the policy. It was his evidence that an updated assessment of the policy was to be undertaken, following the issues which the Claimant had raised in these proceedings. It was said that the Defendant did not have full information as to the number of disabled applicants who had applied to the allocation scheme since its introduction, though he was able to provide statistics for new applicants who had joined the housing register in the preceding four years relating to the number of households in which mobility/disability needs had arisen. There had been only one case in the previous two years in which an applicant had been excluded from the housing register. That applicant had not had a disability.

On the question of proportionality, Mr Hall stated his view that he had not seen any evidence in general, or anything presented by the Claimant as part of her claim, which had demonstrated that rule (d) would put anyone sharing the Claimant’s protected characteristic at a particular disadvantage by comparison with those who did not. Nevertheless, for the purposes of his review, he had acknowledged the possibility that it might do so. Whilst it might be suggested that persons with disabilities causative of their anti-social behaviour were placed at a disadvantage, he would suggest that that was not the case, because, whilst the disabilities might explain that behaviour, the behaviour would not automatically render them unsuitable to be a tenant. Individuals having similar disabilities might seek to address their behaviour in a range of ways, for example, by engaging with support services in order to manage their behaviour, or taking steps to comply with the medication regime. Such matters might positively influence their suitability to be a tenant. In any event, Mr Hall stated his view that the provision remained a proportionate means of achieving a legitimate aim. On his evidence, antisocial behaviour had a serious and detrimental impact on those who suffered it. Considerable time, effort, resource and public money was spent in having to address it, was incurred in managing it at all levels, but was magnified in situations in which the Defendant was compelled to commence court proceedings, whether to restrain the behaviour, or to recover possession. That was public money which would be better utilised in providing other valid services for the community.

Any lesser measure would, in Mr Hall’s view, require consideration to be given to making exceptions to rule (d), for any applicant having a disability, or whose anti-social behaviour related to a disability. That would not achieve the Defendant’s legitimate aims, and would put it in a position whereby it would risk accepting applicants unsuitable to be tenants and likely to continue to act in an anti-social manner. That would create an intolerable situation for other residents and the Defendant’s staff, as well as, potentially, others going about their business in the community. It would run contrary to everything which the Defendant sought to achieve in keeping people safe, and making its neighbourhoods places in which people wanted to live. It would also expose the Defendant to the risk of further expenditure of time, effort and public money in commencing legal action to address the behaviour in question. Social housing was a precious resource, for which reason the policy focused on ensuring that only those applicants who were suitable to be tenants would qualify, from an anti-social behaviour perspective. In any event, an applicant disqualified on the basis of rule (d) would not be precluded from securing housing elsewhere. Such a person could still make a homelessness application or seek accommodation in the private rental sector, as well as seeking to address the relevant behaviour, with or without support.

In connection with section 15 of the EqA, Mr Hall prayed in aid the legitimate aims to which he had already referred, observing that the impact of anti-social behaviour on those who suffered from it formed an important part of the necessary balancing exercise; they, too, had rights and freedoms which needed to be considered. The Defendant owed a duty of care to all of its tenants and community impact was a consideration to be balanced equally against the personal circumstances of those against whom action was taken. The legal fees in the Claimant’s case had been ‘huge’. The Defendant had worked with multiple agencies in an effort to support her, and a number of those who had witnessed the relevant behaviour, at ‘huge’ overarching cost to the public purse and emotional cost to residents. The community impact of her behaviour had been significant and the Defendant had come under significant pressure over the time which it had taken to recover possession, because of the sustained effect which her behaviour had had on those who had been obliged to endure it. Were the Defendant to permit the Claimant to join the register, it would also expose itself to regulatory criticism, as a registered provider of social housing required to develop a policy for maintaining and improving neighbourhoods, and actively to address anti-social behaviour. To uphold those obligations by acting to evict the Claimant, only to rehouse her in the knowledge that she continued to demonstrate the conduct for which she had been evicted, would run totally contrary to the required standards, and inevitably expose neighbourhoods to nuisance behaviour, with the associated reputational damage to the Defendant. For the same reasons, an introductory tenancy would not be a feasible risk mitigation measure and the Defendant would be setting the Claimant up to fail, where her circumstances had not changed and she remained unsuitable to be a tenant. In those circumstances, Mr Hall was satisfied that the policy had a legitimate aim and had been applied proportionately in the Claimant’s case.

It was difficult, in Mr Hall’s view, to identify reasonable adjustments which would mitigate against any substantial group disadvantage which the Claimant might establish. The policy already contained a provision enabling a fresh application where circumstances had changed, and another conferring a residual discretion to make a direct allocation in exceptional circumstances. In Mr Hall’s view, those were adequate overarching safeguards, which ensured that no class of person was placed at a disadvantage. Were it to be suggested that a blanket exception for disabled persons, or disabled persons whose anti-social behaviour related to their disability, ought to be applied, in Mr Hall’s view such an adjustment would not be reasonable. It would simply sidestep the important requirement in the Defendant’s policy that an applicant be suitable to be a tenant. It would mean that the Defendant would be permitting those whom it considered unsuitable to be tenants to join the housing register and potentially secure accommodation in which earlier unacceptable behaviour would be repeated, with the potential profoundly to affect others and associated exposure of the Defendant to a real risk of expending time, resource and public money in addressing the issues created. For the same reasons, a waiver or application of rule (d) in the Claimant’s case would not have been reasonable.

Relying on Professor Fox’s report, Mr Bano submitted that the Claimant was a vulnerable woman, suffering from autistic spectrum disorder (‘ASD’) and ADHD. Her anxiety, alcohol dependency and depression were not advanced as disabilities. He submitted that he had no difficulty in acknowledging that the Claimant had been responsible for anti-social behaviour, for the purposes of rule (d), albeit that her behaviour had not been as serious as the Defendant had made it out to be. This Court, he said, was fixed with the findings of fact made in the possession proceedings, albeit that, for the purposes of Ground Four, it was appropriate to have regard to the wider evidence which had been before the Deputy District Judge and to the allegations of subsequent anti-social behaviour, acknowledging that the latter ought to be treated with caution, absent findings of fact.

Mr Bano submitted that housing allocations were made under Part VI of the HA 1996 and that local authorities were obliged to allocate in accordance with the scheme. Save as regulated by statute, and within certain limits, they could formulate their own eligibility rules. It was accepted by the Defendant that rule (d) operated automatically once the test had been met. The key question of construction was whether the operation of the rule was a matter of discretion, or one of simple fact finding. It was Mr Bano’s submission that the rule raised a question of primary fact, rather than of evaluative judgment. The test for qualification was as set out in the fourth paragraph of the relevant section. He acknowledged that, if he were right, the second and third paragraphs of the rule constituted unnecessary verbiage. If one adopted the Defendant’s construction, he contended, it would follow that it had obtained a possession order to which it had not been entitled. In such circumstances, the Defendant would be obliged to consider whether the conduct in question would have entitled it to such an order and might conclude that it would not. In this case, all relevant matters had been taken into account by the Deputy District Judge, leaving the Defendant no room for manoeuvre. The final paragraph of rule (d) entitled an applicant to re-apply, if s/he had behaved appropriately since his or her earlier anti-social behaviour; it could not assist with the question of whether the rule was over-rigid on first application.

In Mr Bano’s submission, rule (d) raised a ‘type three’ question of precedent fact, as exemplified by R(A) v Croydon LBC [2009] UKSC 8. If the Defendant were correct, it raised a ‘type two’ question, even when a possession order had been made. That defied common sense. If, in practice, a discretion was applied, then the policy was not compliant with Lumba principles and the decision maker had behaved unlawfully in failing to have adhered to the scheme; a lawful application of rule (d) would not have allowed regard to the Claimant’s disabilities. Were the court to accept that submission, grounds four to six would fall away. If the scheme did permit the exercise of discretion, its application in this case had been unlawful (per grounds four to six). In that event, grounds one and three would be dismissed, but the question of proportionality raised by ground two might still need to be decided.

In Mr Bano’s submission, it was established by authority that housing allocations schemes must contain a residual discretion to make extraordinary decisions in appropriate cases. Holley v Hillingdon LBC [2017] PTSR 127, CA was said to provide strong support for that proposition. Furthermore, he contended, allocations schemes or policies could not unlawfully fetter the council’s discretion. For that proposition, he relied upon: R (Ahmad) v Newham LBC [2009] PTSR 632, HL [15]; R (YA) v Hammersmith and Fulham LBC [2016] HLR 39 [85]; R (Yazar) v Southwark LBC [2008] EWHC 515 (Admin) [47]; R (Conway) v Charnwood BC [2002] EWHC 43 (Admin); R v Westminster CC e.p. Hussain (1999) 31 HLR 645; and R v Canterbury CC e.p. Gillespie (1987) 19 HLR 7, each being a housing authority case, reflective of the position in public law generally (see, for example, R (Adath Yisroel Burial Society) v Inner North London Senior Coroner [2019] QB 251, CA [77] to [78]). Acknowledging that, in R (Hillsden) v Epping Forest DC (unrep) [2015] EWHC 98, the contrary conclusion had been reached, Mr Bano submitted that the ratio of that decision had since been undermined by the conclusion reached in R (Adath Yisroel Burial Society), at[79] to [86].

In this case, submitted Mr Bano, the Defendant necessarily relied upon an implicit discretion, to be contrasted with the explicit discretion to be found in other rules of the scheme (see rules (a); (c) and (i), in the same section). It had actively removed the statutory discretion formerly to have been found in section 160A(7) of the HA 1996, superseded in England in April 2012 under the Localism Act 2011. The original provision remained in force in Wales. Nevertheless, the court was being asked to read in a discretion which, on the face of rule (d), did not exist, contrary to the common sense meaning of that rule.

The availability of a fresh application did not assist in establishing the Defendant’s scope to take account of an applicant’s personal circumstances on a first application and would oblige the Defendant to satisfy the court that its oblique reading of the scheme somehow overrode the test for which it provided. Nor was the Defendant assisted by its contention that it could emulate the decision-making process of a judge seised of possession proceedings; such a judge would be addressing a question fundamentally different from whether an applicant should be rehoused, on which the applicant’s personal circumstances would bear very differently. In any event, where, as in this case, the court had already made a possession order, ‘the test’ was, intrinsically, satisfied and, no matter how compelling an applicant’s personal circumstances, they simply could not feature in the decision; the scheme obliged the Defendant to reject the application automatically. Contrary to the Defendant’s pleaded case, the Claimant’s case was not particularly unusual in as much as a possession order had been granted at the time of the rule (d) review. Apart from the speculative nature of that contention, it assumed that, in most cases, the tenant would have committed very serious, anti-social behaviour, but that, nevertheless, the landlord would not have sought to evict him or her — an inherently unlikely scenario.

Finally, the availability of direct letting did not confirm the requisite discretion either, for two reasons. First, the essence of the scheme was that it was choice-based and it was the benefit of that scheme which the Claimant sought in these proceedings. Secondly, the prohibition on fettering a discretion was to leave room to disapply the particular rule in exceptional cases, rather than to offer an applicant something of an entirely different nature: R (Adath Yisroel Burial Society) [78].

In short, submitted Mr Bano, the scheme had not been framed so as to allow departure from rule (d). The highest that the Defendant could put its case was that a discretion ought to be inferred. Whilst the courts had encouraged an approach which applied a ‘sensible degree of flexibility’ (R (Flores) Southwark LBC [2021] HLR 16, CA [39] to [40]), that principle related to the interpretation of existing rules, and could not stretch to the invention of new rules, particularly those which would contradict the existing provisions of the scheme.

Mr Bano submitted that the parties were agreed that section 19 of the EqA applied; that the Claimant’s ADHD and ASD constituted disabilities; and that the Defendant had applied a provision, criterion or practice (‘PCP’) in the form of rule (d).

Disadvantage encompassed the denial of an opportunity: R (TX) v Adur DC [2022] EWHC 3340 (Admin) such as exclusion from the scheme. Per R (Ward and Gullu) v Hillingdon LBC [2019] EWCA Civ 692 [57] to [59] and section 6(3)(b) of the EqA, it was for the Claimant to establish that a higher proportion of those having her particular disabilities would be affected by the relevant PCP. There was no requirement that every person having the Claimant’s disabilities be disadvantaged by rule (d): Essop v Home Office (Border Agency) [2017] UKSC 27 [27]; R (Ward and Gullu) [59]. Reliance was placed upon the DRC Report, though it was said to be very difficult for an individual litigant to produce evidence of the relevant figure, and there was no requirement that a claimant provide statistical evidence as to the likely effect of a PCP, nor evidence as to the actual consequences of the rule: R (TX) [59]. It was to be noted that the Defendant itself had brought proceedings against 11 households, in six of which there had been a disability. At its highest, and tentative though its conclusions were, the DRC Report had stated, ‘with some degree of certainty’, that a proportion of those against whom measures for anti-social behaviour had been taken had received a diagnosis of ADHD. The position was less clear for autism. For all of its limitations, the DRC Report established that those with autism and ADHD were more likely to be subject to a disadvantage. The BIJ study was also to be noted. Albeit anecdotal in nature, it was the best material which the Claimant could produce; there had been no systematic study undertaken.

Mr Bano submitted that, even if the reports on which the Claimant relied were considered to lack value, it was a matter of logic that the relevant neurological disorders manifested in behavioural aberrations. It would not follow that ADHD and ASD would necessarily cause anti-social behaviour, but it stood to reason that a higher proportion of people with those disorders engaged in such behaviour. In effect, the point had been conceded by the decision-maker himself, in the decision under review: ‘I accept that there are some studies, which suggest that people with ADHD may be more likely to engage in anti-social behaviour, and may therefore be disadvantaged by the ASB disqualification provision.’ The SWIFT report had spoken of the difficulties which such individuals experienced in regulating their emotions. It was a source of frustration to the Claimant that the mental health charity, Mind, had not intervened in the proceedings, but it should not be controversial to state that those having neurodevelopmental and behavioural disabilities were disproportionately prone to behaving in a way which might be characterised as anti-social, when compared with those who did not have such disorders. In York City Council v Grosset [2018] EWCA Civ 1105, the Court of Appeal had had no difficulty in finding the requisite link between a serious physical disability and certain conduct, for the purposes of section 15 of the EqA. Mr Bano invited the court not to take an ‘over-strict’ view of the evidence required to establish group disadvantage, for the purposes of section 19(2)(b). Some evidence had to be produced, but it need not be conclusive, or the requirement would present an extraordinary hurdle. If the effect of alcohol were of concern, the question was whether those having the relevant conditions were more likely to self-medicate with alcohol, acknowledging that there was no evidence before the court to that effect.

As to whether the Claimant herself had been placed at the relevant disadvantage, Mr Bano submitted that she was not required to demonstrate a causal link between that disadvantage and her disabilities: Essop [25], nor why it was that rule (d) placed her at a disadvantage: R (TX) [59]; what mattered was whether the disadvantage was connected to the PCP, as it plainly was in this case. Here, alcohol use was related to the Claimant’s disabilities, though it was accepted that some of her anti-social behaviour was alcohol-related and not disability-related. Nevertheless, from the SWIFT report it was clear that certain conduct had been disability-related, but not alcohol-related. Once the relationship between disability and the Claimant’s behaviour was established, it need not afford the entire explanation.

On the issue of proportionality, Mr Bano observed that the four-stage test was as set out in Bank Mellat v HM Treasury [2014] AC 700 [74]: (1) Was the objective of the measure sufficiently important to justify the limitation of a protected right? (2) Was the measure rationally connected with the objective? (3) Could lesser measures have been used without unacceptably compromising the objective? (4) Was the impact on the Claimant’s rights overall disproportionate? Mr Bano submitted that he took no issue with the legitimacy of the Defendant’s aims, but did not accept that rule (d) was rationally connected with the aim of preventing anti-social behaviour, in merely shifting responsibility for managing it to private landlords. In any event, there were less intrusive measures which would have sufficed to achieve the Defendant’s aims. The lesser measure which the court was invited to accept was that for which the statutory mechanism in Wales continued to provide. Thus, the Defendant would need to show why that position; the absolute discretion, could not have been achieved. Only 11 claims had been issued in the last five years; a number sufficiently low that it could not justify the absence of a discretion. It was not the statute which obliged a lack of discretion, but the Defendant’s scheme itself. The statutory provision applicable in England simply did not deal with the matter. Further, R (XC) v Southwark [2017] EWHC 736 (Admin) [99] and [100] was authority for the proposition that allocations policies required safety valves. The focus was to be on the scheme, rather than on the outcome in a particular case. That theme had been revisited in R (Ward and Gullu) [86] and [87]. As an aspect of proportionality, a safety valve allowing departure from the policy in appropriate cases would be required, absent exclusion of disabled applicants from the rule.

All that the Claimant asked was that rule (d) should mirror the statutory provision from which it was, presumably, derived; section 160A(7) of the HA 1996, a provision which was totally discretionary, even where the local authority was satisfied that the applicant was unsuitable to be a tenant. Parliament had considered that a flexible, permissive rule was capable of achieving the aims of all Welsh (and, historically, all English), local authorities, notwithstanding which the Defendant had taken the view that such an approach would not achieve its legitimate aims, yet, there was no evidence to indicate that the position in Eastbourne was somehow much worse than obtained throughout Wales, where a lesser measure sufficed.

This ground arose from trite propositions which were not in dispute, submitted Mr Bano; a local authority was required to comply with its own scheme and with its statutory obligations (see section 166A(14) of the HA 1996). Either the Defendant’s scheme permitted the exercise of a discretion, or it did not. Mr Hall’s witness statement had identified a range of factors to which he had had regard which had not appeared in the scheme, even in generic terms. A ‘major deviation’ from an allocation scheme constituted a breach of the statutory duty to allocate housing in accordance with it: R (A) v Lambeth BC [2002] 50 HLR 56 [28]. Nor was it open to a local authority to adopt ‘administrative practices’ which did not reflect the contents of the scheme itself: R (Faarah) v Southwark LBC [2009] HLR 12 [37], [41]. Public authorities could not ‘live in the world of Humpty Dumpty: they cannot make [a policy] mean, whatever they would like it to mean’:Tesco Stores v Dundee CC [2012] PTSR 893, SC [19]. Mr Hall’s witness statement in these proceedings served to undermine the Defendant’s case. The scheme was very clear, but Mr Hall’s position was that, ‘in practice’, the Defendant applied a wholly different approach, whereby, in this case, the decision-maker had considered that rule (d) ought to be applied ‘selectively’ and the case determined ‘on its own merits’. He had designed unpublished criteria for himself, as to whether there had been adequate improvement in the Claimant’s behaviour, and whether her circumstances had been ‘in extremis’ and considered the rule which he ought to have applied to be no more than guidance to which he ought to have regard. That had been unlawful: Faarah; R (Mandalia) v SSWP [2015] 1 WLR 4546, SC [29]; and R (A) v Lambeth BC.

Acknowledging that ground three sought to compel the Defendant to adhere to a policy which, on the Claimant’s case, was unlawful, Mr Bano, nevertheless, invited the court to mark the unlawfulness of the Defendant’s approach. Had it adhered to its unlawful policy, it would, at the very least, have led to a much more straightforward legal challenge.

Mr Bano submitted that, were the Claimant to be wrong in relation to all of the above, such that the scheme had entitled the Defendant to make an individual evaluative decision on the merits of her case, the target of her challenge would shift from being the scheme itself to the particular decision made.

Ground Four concerned section 15 of the EqA. In issue was (1) whether there had been sufficient causal connection between the Claimant’s disabilities and her anti-social behaviour; and (2) proportionality.

As to the first of those issues, two questions arose — whether any of the Claimant’s antisocial behaviour had arisen from her disability; and, if so, whether the Defendant had rejected her application “because of” that behaviour. In Mr Bano’s submission, the evidence clearly established that at least some of the Claimant’s anti-social behaviour had been directly related to her disability. He contended that disability need not be the sole, or even the main, cause and that the connection could be fairly loose: Pnaiser v NHS England [2016] IRLR 70; York City Council v Grosset [50]. Even if alcohol had played a part in the Claimant’s behaviour, that would not remove the connection. Here again, reliance was placed upon the Fox and SWIFT reports.

As to the second question, the threshold set was low and required that the disability-related conduct must have had an influence which was more than trivial. The Defendant had not identified the particular behaviour which had barred the Claimant from the register and had not stated that its only concern had been alcohol-related behaviour, its treatment of her, at least in part, must have been disability-related. Professor Fox had said that the Claimant’s drinking had led him to a guarded prognosis. He had not said that, were she to stop drinking, all anti-social behaviour would cease, or that her disabilities precluded her from seeking help. Absent alcohol consumption, there was some disability-related connection to her bad temper; poor relationships; and control of her emotions.

On the question of proportionality, Mr Bano relied upon Aster Communities Limited v Akerman-Livingstone [2015] AC 1399[32H], emphasising that the focus here was on the availability of lesser measures (see above). The generosity of approach which the law required fell to be contrasted with the Defendant’s position, which equality law was designed to avoid, to the effect that it did not wish to take on tenants having behavioural disabilities. A local authority was obliged ‘to go above and beyond’ for disabled applicants.

Under sections 20 and 21 of the EqA, where a PCP puts people with disabilities at a particular disadvantage, a duty arises to ‘take such steps as it is reasonable to have to take to avoid the disadvantage’. In this case, Mr Bano submitted, the comparison to be undertaken was broader than that required under section 19 of the EqA and was not between the class of people who shared the Claimant’s specific disabilities, on the one hand, and the class of people who did not, on the other. The effect of paragraph 2 of Schedule 2 to the EqA was to require the court to frame a group comprising similarly disabled people: R (Rowley)v Minister for the Cabinet Office [2021] EWHC 2108 (Admin)[25] to [26]; here, probably, ‘people with behavioural disabilities’,which was to be compared with a group comprising those who were not disabled in any way: R (Rowley) [24]. The duty would arise, not when an applicant identified or requested an adjustment, simply when the court was satisfied that there was a PCP giving rise to a disadvantage, and that there was an adjustment which it would have been reasonable to make: R (Nur) v Birmingham CC (no. 2) [2021] HLR 23, at [149] and [157]. Whether or not an adjustment was reasonable, was an objective question for the Court, bearing in mind all of the circumstances of the case: Royal Bank of Scotland v Allen [2009] EWCA Civ 1213 [40] and [46].

Albeit that the figures set out in the DRC Report were not directly on point, they painted a picture, as did the text of that report, so Mr Bano submitted. Collectively, they served to demonstrate the disproportionate disadvantage caused by the PCP which had been applied in this case. A reasonable adjustment might be the reintroduction of the statutory discretion for which section 160A(7) of the HA 1996 had provided and which had since been deleted in England. Its absence constituted a breach of section 21 of the EqA. If the decision-maker had applied a discretion, it had been the wrong one; he had evaluated whether the Claimant had been unsuitable to be a tenant, as opposed to whether, if so, rule (d) ought to be disapplied. The Defendant had made no adjustment to the policy to meet the needs of those having behavioural disabilities. As a matter of principle, there might be individuals who were completely unsuitable to be tenants, such as those who hoarded items and thereby created unsafe environments, whom it would not be fair to oblige the council to re-house. Anti-social behaviour of the nature under consideration in this case was much easier to address, by way of behaviour contracts, or an injunction. A reasonable adjustment would entitle the Defendant to have regard to the opportunity, time and cost engaged in dealing with anti-social behaviour by the particular applicant.

Subject to the argument advanced under Ground Four, Mr Bano acknowledged that, in this case, having made the reasonable adjustment which he proposed, the Defendant might lawfully conclude that the Claimant did not qualify to join the register. When considering whether to disapply rule (d), it could factor in any pattern of past behaviour. If, having done so, it considered that that pattern was likely to be repeated, it would be entitled to conclude that the Claimant was not entitled to the waiver of the disqualification which would otherwise follow. In so doing, it would be obliged to comply with section 149 of the EqA. In that context, the court was not being invited to speculate as to the outcome, but could not conclude that it was highly likely to have been the same. That was because, in exercising a discretion specifically concerned with disability and any positive duty owed to disabled applicants, the Defendant would have been obliged to have adopted a very different approach from that which it had adopted in this case and to have asked itself a very different question from whether the Claimant was a suitable tenant.

In relation to ground six, Mr Bano observed that Lumba had been applied in the context of housing allocation in R (Roman) v Southwark London Borough Council [2022] EWHC (Admin) ([121], [123]); and R (Cort) v Lambeth LBC [2022] EWHC 1085 (Admin). The short point was that public authorities were obliged to publish, or, at least, possess, a transparent statement, setting out the way in which discretionary decisions would be reached. In the allocations context, there was a statutory provision to similar effect; section 166A(9) of the HA 1996. The Defendant had confirmed in evidence that there were no additional policies or guidance, such that the scheme was exhaustive and determinative. If the policy did not provide for a discretion, the Defendant unlawfully had failed to adhere to the applicable legal principles; there had been a gulf between rule (d) as, respectively, drafted and applied. In Mr Bano’s submission, one of grounds three or six had to succeed; either the Defendant had not been entitled to depart from the clear provisions of rule (d), or it had been so entitled, with the necessary consequence that it had been obliged to formulate and publish a transparent statement of the criteria by reference to which the rule was selectively applied.

Mr Bano submitted that the Claimant had been caused serious prejudice and that the court should: allow her claim; grant appropriately worded declarations; quash rule (d) and/or the Defendant’s decision that the Claimant was not eligible to join the housing register; order that the Defendant pay compensatory damages for discrimination, with quantum to be assessed by the County Court, if not agreed; and order the Defendant to pay the Claimant’s costs.

Ms Cullen outlined the statutory scheme for housing allocation for which Part VI of the HA 1996 provided and the legislative history, contending that it formed the background against which all grounds of review necessarily fell to be considered. She observed that, between 1997 and 2003, local authorities had been permitted to exclude classes of applicants from applying to join their allocation schemes. From 2003, they had had the power to treat a person as ineligible on grounds of ‘unacceptable behaviour serious enough to make [the applicant] unsuitable to be a tenant’. Behaviour could only be regarded as unacceptable if it would have entitled the authority to a possession order under any of the grounds in Schedule 2 to of the HA 1985 (other than ground 8), if the applicant had been a secure tenant: sections 160A(7) and (8). From 15 January 2012, in England, authorities had, again, been permitted much broader powers in respect of qualification criteria, and those statutory provisions had been repealed, as redundant. The “Allocation of accommodation: guidance for local authorities in England” stated that local authorities might wish to adopt qualifying criteria, which would disqualify individuals who satisfied the reasonable preference requirements, giving the example of anti-social behaviour (at paragraph 3.28).

Where there was antisocial behaviour, there were a number of grounds on which a local authority would be permitted to obtain a possession order against a secure tenant. The court would need to be satisfied both that the relevant ground was made out and that it was reasonable for a possession order to be made: sections 84(1) and (2)(a) of the HA 1985. In relation to the latter, all relevant circumstances as at the date of the hearing were to be taken into account: Cumming v Danson [1942] 2 All ER 653, 655. The court was obliged to have regard to any medical evidence relating to the tenant’s mental health, including as to whether that state of health related to the behaviour of which complaint was made, and to consider whether, with treatment, the relevant behaviour could improve: Croydon LBC v Moody (1999) 31 HLR 738, pp744 to 745; Teign Housing v Lane [2018] EWHC 40, at [56] and [57]. It would not be reasonable to make a possession order which would involve disability discrimination: Teign [41].

It was for the court to interpret an allocations policy, adopting an approach which allowed for a degree of flexibility and in a ‘practical, common sense, and not in a legalistic way’: (R (Ariemuguvbe) [31] and [24]. Whilst a common sense interpretation of rule (d) would not entitle the court to read in words which were not present, it would require a purposive interpretation of wording which might otherwise be considered ambiguous. In Ms Cullen’s submission, developing the points pleaded in the Grounds of Resistance and summarised above, such an approach supported the Defendant’s construction of rule (d), in which the overriding test required the Defendant to evaluate an applicant’s suitability to be a tenant. Where the Defendant’s policy expressly exempted other non-qualifying groups, it applied criteria which engaged questions of fact alone; either they were satisfied, or they were not; and no evaluation was required. It was that which explained the differences between the wording of rule (d) and the other rules to which the Claimant had pointed.

Rule (d) was discretionary, in so far as it enabled an applicant’s personal circumstances to be considered. The Defendant was not contending that unsuitable behaviour would automatically result in disqualification. It might be that the quality of the behaviour would be affected by, or in consequence of, disability. In practice, that would be highly relevant; in order to determine whether a possession order would be reasonable, the court would need to have regard to the tenant’s personal circumstances. The Defendant could regard behaviour which would have entitled it to a possession order under certain grounds contained in the HA 1985, if the applicant had been a secure tenant, as satisfying the test under rule (d), but the Claimant was wrong to suggest that the fact that a possession order had already been made against her had obliged the Defendant to disqualify her under that rule. The existence of that order, whilst highly relevant to the Defendant’s determination of whether the rule (d) test had been met, and able to be accepted as evidence of the Claimant’s unacceptable behaviour, did not remove from the Defendant its responsibility to determine whether the test had been met, consistent with the Welsh Government’s guidance in connection with the similar statutory provision which continued to apply in Wales. It followed that all such matters could be considered by the Defendant when applying rule (d). The final paragraph of the rule was forward-looking, but assisted in demonstrating how the rule was to be applied, Ms Cullen submitted. The availability of a discretion was clear, both from the rule and the practice. If the test in rule (d) was satisfied, however, Ms Cullen acknowledged that there would then be no discretion as to its consequence.

Ms Cullen submitted that an allocation policy was not necessarily unlawful in the absence of a residual discretion: R(Z) v Hackney London Borough Council [2019] PTSR 2272, CA [84], approved in the Supreme Court [2020] UKSC 40 [77]ff. As to the caselaw upon which Mr Bano relied:

In this case, submitted Ms Cullen, contrary to the ordinary position, the local authority contended for a construction of the rule which was more permissive than that advanced by the applicant. Ground one raised a pure public law argument, which was to be considered separately from the remaining grounds of review. It was not disputed that a fetter would be unlawful, but an allocations policy was required by statute and had to be followed. Thus, the starting point for ground one (and leaving aside the EqA-related grounds) was that there was no requirement that the policy contain a residual discretion: R (Adath Yisroel Burial Society) [191] and [192].

Were the court to accept that the policy put those with a disability at a particular disadvantage and that the Claimant was herself at that disadvantage, the onus would be on the Defendant to demonstrate proportionality. It was accepted that, ordinarily, the availability of some form of discretion would point to such a policy being justified.

The essence of Ms Cullen’s submissions on this ground was that there was insufficient evidence before the Court to justify the conclusions which the Claimant urged, for the purposes of sections 19(2)(b) or (c) of the EqA and that it was for her to establish those matters: R (TRX) v Network Homes Limited [2022] EWHC 456 (Admin) [62]. In any event, if the Defendant’s construction of rule (d) were correct, the group disadvantage under section 19(2)(b) would not be established, because account could be taken of an applicant’s personal circumstances, nullifying any disadvantage which might otherwise arise. In any event, section 19(2)(c) would not be established, in light of the Claimant’s own actions; either the relevant PCP had not caused the disadvantage, or her circumstances were materially different from those of the group, by virtue of her alcohol abuse. When comparing cases for the purposes of section 19, there must be no material difference between them: section 23(1) of the EqA. In Ms Cullen’s submission, it would not suffice for the Claimant’s disabilities to form only part of the cause of any disadvantage, which was the distinction between sections 19 and 15 of the EqA, per Essop [32]. In this case, the decision letter had referred to alcohol abuse, to which others had alluded, and there had been material before the decision maker and the Deputy District Judge in that connection. There had been no evidence that the Claimant’s anti-social behaviour had arisen in consequence of her disabilities. Even if it had done so in part, the court might take the view that the Defendant could not overcome the requirement that there be a link between the PCP and the disadvantage, but that, when considering section 19(2)(c), it could be satisfied of a material difference in circumstances — this was an applicant at least part of whose anti-social behaviour had related to the use of alcohol.

There was also the need to distinguish between the question of whether the PCP eliminated indirect discrimination and that of justification. Any measure relied upon as a “safety valve” to nullify a “particular disadvantage” had to overcome the relative disadvantage: R (Ward and Gullu) [86]. Paragraph [95] provided some support for the Defendant’s proposition that a wider margin of appreciation ought to be adopted when considering the proportionality of an allocations scheme. The court would generally respect a policy choice, unless it were “manifestly without reasonable foundation”: R(DA) v Secretary of State for Work and Pensions [2019] UKSC 21 [58] and [59]. The policy as a whole was relevant: R(XC) [87] and the court should bear in mind that: (1) it was in no position to rewrite the policy, and weigh the claims of the multitude who were not before the court against the few who were; (2) it was undesirable for courts to be involved in questions of how priorities were recorded in housing allocation policies; and (3) courts should not interfere with allocation policies, save in clear and exceptional circumstances: R (XC) [93] to [96], citing Ahmad. The disqualification of applicants on grounds of anti-social behaviour had been held to be proportionate for the purposes of Articles 8 and 14 ECHR in the care leaver context: R (YA) [84] and [85].

Finally, Ms Cullen referred me to R (Imam) v Croydon LBC (no. 2) [2021] EWHC 739 (Admin), observing that there was some crossover with the question of reasonable adjustments. Whilst that case had been the subject of appeal on a different issue, there had been no appeal from its conclusions regarding the latter. In Imam, the claimant had been a wheelchair user, on a waiting list under Part 6 of the 1996 Act. At [87], the stepped approach required and the need for evidence had been noted. The claim was dismissed in the absence of the latter [91] and [93]. In this case, Ms Cullen submitted, evidence was lacking for the purposes of the challenge brought under section 19 and section 20 of the EqA. For the purposes of the former, the evidence produced did not suffice to demonstrate that individuals having ADHD and ASD were at a particular disadvantage, or that the Claimant herself was at that disadvantage. The Defendant was not seeking to be obstructive and was sensitive to the risk of stigmatising those with ASD and ADHD. In MM v SSWP [2013] EWCA Civ 1565 [30], charities had intervened in the proceedings and an expert had been called as a witness. It would have been open to the Claimant in this case to come before the court with a CPR Part 35-compliant report from a suitably qualified expert as to each condition, supportive of her contention that such condition manifested itself in the way in which the court was invited to find. She had not done so and the evidence which she had produced was incapable of supporting the findings invited. This court was not bound by the findings of the Deputy District Judge, whose order had been set aside on appeal and whose analysis of the Fox Report had been found on appeal to have been flawed.

Ms Cullen submitted that, for the Defendant’s purposes, the SWIFT report was noteworthy in two respects: it had been produced in April 2019, primarily for Children’s Services, and had made no findings regarding the anti-social behaviour the subject of the possession proceedings. Professor Fox’s report had not directly addressed whether the types of anti-social behaviour which had led to the possession proceedings, and to the Defendant’s view that the Claimant ought to be disqualified under rule (d), had been connected to her disabilities. The identification of a difficulty in reciprocal communication with others did not address the behaviours with which this case was concerned and could not justify a conclusion that those with ADHD or ASD were likely to act in an anti-social way, or that the behaviour which had led to possession proceedings had arisen in consequence of either condition. More particularly, the Claimant herself had referred to the fact that she only did stupid things when drunk and that the complaints about her had related to alcohol abuse and noise. The BIJ article had primarily concerned an analysis of committal proceedings, and the DRC Report had referred to ADHD primarily in relation to children, rather than adults; its evidence base and findings had been limited. At its highest, the DRC Report had expressed ‘some degree of certainty’ as to its conclusions, which fell apart when one considered the studies reviewed, relating as they did to cohorts within which the Claimant did not fall, being children with ADHD. Acknowledging that the Defendant’s own data on disqualification under rule (d) was limited, it, too, did not support a finding of group disadvantage. The court ought to be very cautious when making findings in connection with sections 19(2)(b) or (c).

Ms Cullen invited the court to look at the evidence which had been before the decision-maker, as exhibited to his witness statement, which had included a statement from a police officer which had referred to the Claimant’s drinking; to the fact that she had been permanently drunk and abusive to neighbours; and to an altercation with a resident in which she had described herself as having been drunk, said to demonstrate numerous links between her behaviour and her use of alcohol, leading to the possession proceedings and the Defendant’s decision to exclude her from the register. Thus, even if she were able to establish group disadvantage, a central reason for her disqualification under rule (d) had been her alcohol use, and her failure to have addressed it. That was akin to the example, given in Essop [32], of the applicant who had not passed the exam because she had not prepared for it, or shown up on time.

Ms Cullen submitted that Mr Bano’s submission as to self-medication was wrong in law; alcohol dependency fell within the conditions excluded from protection under the EqA, such that, where a disability caused a person to act in a way which fell within that exclusion, the latter would bite, in connection with sections 19 and 15: C and C v The Governing Body of a School [2018] UKUT 269.

On the question of justification, the focus was on whether lesser measures would suffice, the legitimacy of the Defendant’s aim having been accepted by the Claimant. The decision-maker’s witness statement had set out the seriously detrimental impact on those who suffered anti-social behaviour, and the resources and public money spent in connection with it. Examples of how those having a similarly protected characteristic might seek to address their behaviour had been provided. When considering justification, one should consider the policy as a whole, the safety valves and assistance available within it, and the way in which they were of benefit to those having particular protected characteristics, were those individuals not disqualified: see R (H) v Ealing LBC [2017] EWCA Civ 1127 [56] and [59]. The Defendant’s policy made clear that it did not cover referrals to extra care, supported or other specialist housing. The Claimant had rejected a referral to supported housing (on her case because she was not at the requisite level of disadvantage). Whilst the court had no evidence of the qualifying criteria for other policies, the existence of the latter provided evidence of some safety valve for those falling outside the allocations policy and fell to be considered in tandem with the decision-maker’s evidence that they afforded an option for anyone disqualified under rule (d). Within the allocations policy itself, Band A made provision for individuals having severe and enduring mental health issues significantly affected by their current accommodation, albeit that the Claimant herself was unlikely to fall within that category, though she might fall within category (c): ‘The Applicant is ready to move on from approved supported housing within Eastbourne and the appropriateness and need for a social tenancy has been confirmed by the Council’. Read as a whole, the policy might advantage some individuals with disabilities, though it was acknowledged that there would be individuals with ADHD and ASD who lacked that level of disability. For those individuals, priority Band B would apply, which, amongst others, encompassed category (h): ‘Applicants who are owed a full housing duty under s193 Housing Act 1996, and living in temporary accommodation on licence or on a non-secure tenancy’. The availability of direct lets, in exceptional circumstances, also provided a safety valve, as did the ability to reapply for those who were able to address their behaviour, whose earlier unacceptable behaviour ought not to be held against them.

In Ms Cullen’s submission, the recommendations made by Professor Fox as to how anti-social behaviour might be addressed primarily related to behaviour subsequent to allocation. It was for that reason that no lesser measure would achieve the Defendant’s legitimate aims, including to prevent such behaviour. The position adopted in Wales was not of assistance, because the Welsh Government had not introduced the changes made in England by the Localism Act 2011. The Welsh Government might take a very different view as to whether those who exhibited anti-social behaviour ought to be accommodated, or whether local authorities ought to have the prevention of anti-social behaviour as an objective. The issue here, on which the court ought to focus, was whether the lesser measure proposed would achieve the Defendant’s aims. In considering the justification for rule (d), the court could consider whether there were measures which could be put in place to address the relevant behaviour.

Ms Cullen submitted that Mr Bano’s reliance upon the words ‘in extremis’ in the review letter was misplaced. Its proper meaning had been explained by the decision-maker in his witness statement. When making the decision, Mr Hall had had before him the extensive attempts to assist the Claimant which had been made in the possession proceedings. The court was invited to apply the ‘benevolent approach’ required by Holmes-Moorhouse v Richmond upon Thames [2009] UKHL 7 [50], and to decline to ‘take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach’. The short point was that the scheme had been applied correctly to the circumstances of the Claimant’s case. If she were right in her submission as to the narrow construction of rule (d), it would have made no difference to the decision taken.

Ms Cullen submitted that, pursuant to section 191 of, and Schedule 22 to, the EqA, there would be no contravention of Part 3 of the EqA, ‘if a person (‘P’) does anything P must do pursuant to a requirement of an enactment’. In this case, the Defendant was obliged to allocate in accordance with its scheme, per section 166A(14) HA 1996. If it considered the rule (d) test to be met, it could not allow the Claimant to join the housing register, albeit that it could make a direct allocation in exceptional circumstances. Thus, even if the requirements of section 15 of the EqA were found to have been made out, the Defendant’s approach would not constitute a contravention of that section.

Furthermore, here, too, Ms Cullen prayed in aid the asserted paucity of relevant evidence. There had been an insufficient connection demonstrated between the Claimant’s disabilities and the conduct which had led, first, to the possession order and, then, to her exclusion from the register. On the issue of proportionality, including consideration of the impact of anti-social behaviour on others, the decision-maker’s statement was instructive. If the Claimant were permitted to join the register and be rehoused, having failed to address her alcohol abuse, a vicious circle would result. The Defendant had offered to refer her to supported housing, or to a detox program, if she were willing to engage.

As a preliminary matter, Ms Cullen challenged the Claimant’s shift in position on this ground. As originally put, her contention had been that the duty to make a reasonable adjustment had been owed to her alone. As the law stood (see R (Rowley)), that would have warranted the dismissal of ground five. Her change of position, to the effect that the duty was owed to a class of people, had first been advanced in Mr Bano’s skeleton argument, served 21 days prior to the hearing. Accordingly, the Defendant ‘might have been' prejudiced and, had the case originally been advanced in the way now put, might have gone into further detail in its evidence, and led evidence on the form which a reasonable adjustment might take, though it was not submitted that it had lacked sufficient time in which to do so, albeit that the Defendant had struggled to obtain disclosure from the Claimant. In Ms Cullen’s submission, in the allocations arena, it was not for the court to search for possible reasonable adjustments, but to assess those proposed by a claimant.

Substantively, Ms Cullen submitted that ground five was only engaged if the Defendant’s interpretation of rule (d) were accepted. The sub-group to which any duty was owed was ‘people disabled in the same way’: R (Rowley) [24]. In other cases, it has been widely drawn (see R (Nur) [151], in which it was considered that the court had to ‘look at the position of disabled persons generally, and not just persons who have the particular disability suffered by [the particular claimant]’). In this case, the sub-class, as formulated in the Claimant’s skeleton argument, was problematic. It was unclear what was meant by behavioural disabilities; would it extend to those having eating disorders, or addictions (a number of which would not fall within section 6 of the EqA)? A disability such as ADHD or autism was not easily classified as being simply behavioural. Should the court consider that disabled persons generally constituted too broad a class, in MM [1] the class had been defined to comprise mental health patients (those having impaired mental, cognitive or intellectual difficulties).

Questions of disadvantage and the lack of evidence had already been addressed under ground two.

In his skeleton argument, Mr Bano had asserted that the appropriate reasonable adjustment would have been to waive rule (d) in cases of behavioural disability. In oral submissions, his position had shifted to the need for a discretion to do so. That would not have been a reasonable adjustment, whether generally, or in relation to the Claimant, for the reasons outlined by Mr Hall in his witness statement. The safety valves which the scheme as a whole contained ought to inform the nature of any reasonable adjustment advanced. Here again, the Claimant’s failure to have addressed her alcohol use meant that any explicit discretion would have made no difference to the Defendant’s concerns. If a duty was owed under section 20 if the EqA, and was breached by the Defendant, that breach had made no difference to the outcome, given the absence of evidence that the behaviour which had led to the possession proceedings, and the Claimant’s subsequent disqualification under rule (d), had been due to her disabilities. If she were to be entitled to a remedy, the Claimant had to show that there was, at least, a real prospect that the proffered reasonable adjustment would have made a difference: R (VC) v SSHD [2018] EWCA Civ 57 [177].

Here again, the merit in this ground was said to come down to the proper construction of rule (d). This was not a case in which unpublished guidance had been applied; the policy itself had made sufficient provision for the exercise of discretion.

Ms Cullen submitted that, if ground one were made out, it was highly likely that the same conclusion would have been reached. Regarding ground three, if the Defendant had failed to apply the policy, it had done so only in a way which had operated to the Claimant’s advantage. Similarly, if upheld, grounds four and five would have made no difference, for reasons addressed in the course of addressing those grounds. If the grounds relating to the policy itself were made out, the court should refuse to grant a remedy and, in particular, a quashing order, given that the policy was to be reviewed imminently in any event. The court should not award damages under the EqA, or transfer the matter to the County Court for that purpose. If the High Court had already made a determination as to unlawfulness, that would be material to the County Court’s disposal, pursuant to section 119(6) of the EqA. That should have a bearing on this court’s exercise of its discretion as to transfer, as should any remedy granted in relation to section 19 of the EqA. The question of whether transfer was appropriate had been addressed in R (Rowley) by Fordham J.

In all the circumstances, submitted Ms Cullen, the claim should be dismissed.

Mr Bano made two points in reply.

First, he submitted that the fetter of discretion was important independently of the EqA considerations. The court was invited to follow the Court of Appeal in Holley,even though it had left the question open in that case. The better view, he submitted, was that expressed in R (Adath Yisroel Burial Society) [79]ff, the principle in which applied where, as here, the relevant power derived from statute. The principal distinction drawn had been that between statutory and prerogative discretion.

Secondly, regarding remedy, he submitted that, were grounds two, four or five to succeed, there must be a remedy because the court would have found either an unjustified discriminatory PCP, or unjustified discrimination, contrary to section 15 or 20 of the EqA. That would entitle the Claimant to a declaration and damages (this being, he contended, a middle band Vento (Footnote: ¹) case) and, probably, to a quashing order. As unlawful discrimination is not to be tolerated, it is difficult to contend for a de minimis approach. The test under section 31(2A) of the Senior Courts Act 1981 was whether it was highly likely that there would have been a different outcome. Here, Mr Bano submitted, the allocations decision might well have been the same, but the different outcome would have been the absence of unlawful discrimination, though he could provide no authority in support of his proposition that that would suffice.

Mr Bano submitted that the cases in which section 31(2A) has been applied had tended to be process cases, or procedural challenges. There had been some consideration of the application of section 31(2)(a) in TM v Metropolitan Housing Trust Limited [2022] 1 WLR 2161, CA [55], but it had not advanced matters much further. In any event, it was, generally, dangerous to second guess how a public body would reach a decision, and the more so in this case, where the Defendant had so strongly resisted any discretion over disqualification once unsuitability to be a tenant had been found. Mr Bano accepted, in principle, that section 31(2)(a) of the Senior Courts Act 1981 could apply to grounds three and six, and that any relief granted in relation to those grounds would be likely to be declaratory, rather than a quashing order.

I begin with a consideration of the Defendant’s statutory obligations, under the HA 1996. By section 159 (situated within Part VI of the Act), a local housing authority is obliged to comply with the provisions of Part VI in allocating housing accommodation, subject to which it may allocate housing in such manner as it considers appropriate.

Section 160ZA provides for the position in England:

The position as it applies in Wales is set out in section 160A of the HA 1996, which provides (materially):

In all respects material for current purposes, that section mirrors section 160A of the HA 1996 as it had stood prior to amendment by the Localism Act 2011, in which subsections (7) and (8) had provided:

Sections 84 and 84A of the HA 1985, and Part 1 of Schedule 2 to that Act provide:

By section 166A of the HA 1996, every local housing authority in England: (1) must, inter alia, have a scheme (its ‘allocation scheme’) for determining priorities and as to the procedure to be followed in allocating housing accommodation; (2) subject to specified subsections, and to any regulations made thereunder, may decide the principles on which the scheme is to be framed; and (3) must not allocate housing accommodation except in accordance with its allocation scheme. Section 169 of the HA 1996 provides that, in the exercise of their functions under Part VI, local authorities shall have regard to such guidance as may from time to time be given by the Secretary of State, who may give guidance generally, or to specified descriptions of authorities.

In March 2016, the Welsh Government issued guidance for local authorities on the allocation of accommodation and homelessness, which (1) included consideration of the three-stage test of unacceptable behaviour to be applied before an authority could use its power to decide that an applicant was ineligible for allocation or would be given no preference; (2) provided that there was no obligation on a local authority to treat an applicant as ineligible by reason of his behaviour, or that of a household member; and (3) set out the Welsh Government’s requirements for local authorities which were developing policies on unacceptable behaviour. To the extent relevant, I shall return to consider the Welsh guidance later in this judgment.

The Defendant’s allocation policy, dated June 2018, was implemented at a time when section 160ZA(7) of the HA 1996 was in force, permitting local authorities in England to decide which classes of person were, or were not, qualifying persons. The salient parts of the policy have been recited above and reflect an apparent intention to adopt an approach similar to that for which sections 160A(7) and (8) of the HA 1996 had provided, prior to their repeal. Rule (d) applicants, who, amongst others, do not qualify to join the housing register, are initially defined as ‘applicants whose anti-social behaviour (ASB) is serious enough to make them unsuitable to be a tenant’, a definition which is considered on the following page, under the heading, ‘Applicants whose anti-social behaviour is serious enough to make them unsuitable to be a tenant do not qualify.’ That, too, makes clear the overarching test to be satisfied. The five paragraphs which follow are, undoubtedly, poorly drafted. The first repeats the overarching need for behaviour which is (1) unacceptable; and (2) serious enough to make the applicant unsuitable to be a tenant of the council. The second identifies types of behaviour which ‘can’ be regarded as unacceptable ‘for these purposes’ (and the use of permissive, rather than mandatory, language is to be noted) as including that which would ‘have entitled the Council to a possession order under certain Grounds contained in the Housing Act 1985’. It does not articulate which grounds, nor, in terms, the requirements imposed by the relevant statutory provisions. Whilst, at first blush, the linguistic focus of the first to third paragraphs of the rule might appear to be on the nature of the applicant’s behaviour per se, rather than on its causative or contributory factors, or effect for the purposes of legal proceedings, the policy is to be read in a common sense way and not to be construed as one would a statute, or parsed in such a manner, in particular given the wording of the fourth paragraph: ‘The test is whether the behaviour would have entitled the Council to a possession order if, whether actually or notionally, the Applicant had been a secure tenant.’ It is that ‘test’ which gives rise to the Defendant’s argument that the policy obliges the decision-maker to consider not only the nature of the behaviour itself, but whether it would have entitled the Defendant to a possession order, itself said to extend to a consideration of all factors to which a court must have regard in determining that latter question, encompassing, where relevant, the impact of the applicant’s personal circumstances, including any disability. On balance, I incline to the view that that construction is correct, for the following reasons:

Against that background, I turn to consider the grounds of review.

In issue between the parties is whether there is a requirement that a housing allocation scheme contain a residual discretion to make extraordinary decisions in appropriate cases. I have found that a discretion to consider all relevant circumstances is inherent in the rule (d) test. Recognising that the discretion for which the Claimant contends is one which would enable waiver of the rule, if the test were found to have been satisfied, I must first consider whether the law requires that such a discretion form part of the scheme. The Claimant submits that strong support for such a requirement is to be found in Holley v Hillingdon BC [27] and that a number of cases support the existence of a requirement that a housing scheme cannot unlawfully fetter the council’s discretion by being over-rigid or inflexible. The Defendant accepts that there should be no fetter on any discretion required, but contends that its policy is neither over-rigid, nor inflexible.

Having regard to the case law on which each party relies:

I respectfully agree with McCloskey J’s analysis, for the reasons which he gave, which apply equally to the policy and rule here under consideration. Mr Bano sought to circumvent that analysis by reference to R (Adath Yisroel Burial Society) [79] to [86]. The latter, he submitted, was authority for the proposition that the British Oxygen principle applied where the power in question merely derives from statute. The basis for that submission would appear to be the following dicta of Singh LJ:

In short, I am satisfied that, leaving aside any EqA-related considerations, there is no requirement for a residual discretion, or prohibition on the fetter of a discretion in this context.

It follows that the second issue raised by ground one does not arise for determination. For the sake of completeness, however, it is of note that, at [26] in Holley, Briggs LJ observed:

In this case, the Defendant’s allocations policy contained the following provision (emphasis added):

Ground one fails.

Section 19 of the EqA provides:

There is no dispute that: (1) in allocating accommodation under Part VI of the HA 1996, the Defendant was providing services to a section of the public, such that section 29(1) of the EqA was engaged; (2) the Claimant was disabled by virtue of her ASD and ADHD; (3) the Defendant had applied a PCP, in the form of rule (d); or (4) that it applied, or would apply, rule (d) to persons with whom the Claimant did not share her protected characteristic. The issue is whether sections 19(2)(b), (c) and (d) are satisfied. The burden is on the Claimant to establish the matters in section 19(2)(b) and (c) and, should 19(2)(d) be engaged, on the Defendant to establish justification: Dziedziak v Future Electronics Ltd EAT 0271/11 [42]. There is no requirement that the Claimant show why the PCP puts members of the protected group at a disadvantage when compared with others — it is enough that it does so: Essop [24] and [33] — but there must be a causal link between the PCP and the particular disadvantage suffered by the group and the individual: Essop [25], [32]. This may be easier to prove if the reason for the group disadvantage is known, but that is a matter of fact, not law: Essop [33].

Notwithstanding the warnings issued in Ahmad ([46] and [62]) against the court’s over-interference in the policy choices made by a local housing authority, a court must be satisfied that such a policy does not unlawfully discriminate: Ward and Gullu [49]. In addition, paragraph 16 of the Secretary of State’s statutory guidance, issued in 2013, requires housing authorities to have regard to their duties under the EqA. Section 169(1) of the HA 1996 requires housing authorities to have regard to guidance issued by the Secretary of State in exercising their powers under Part VI of that Act. For the purposes of section 19(2)(b), as counsel agree: (1) the relevant comparison is between groups rather than individuals: Essop [41]; (2) there is no requirement that every member of the group which shares the relevant protected characteristic be put at a disadvantage by the PCP in question: Essop [27]; and (3) the question in this case is whether rule (d) puts or would put those who share the Claimant’s disabilities at a disadvantage when compared with those who do not. The fact that some members of the comparator group are also disadvantaged by the PCP does not negate indirect discrimination, if a higher proportion of the protected group suffers that disadvantage: Ward and Gullu [59]. Whilst it is commonplace for disparate impact, or particular disadvantage, to be established on the basis of statistical evidence (Essop: [28]), there is no requirement that it be established by that means.

It is first necessary to define the disadvantage asserted by the Claimant (Essop [31]), which is said to be exclusion from the housing register. Thus, her contention is that rule (d) excludes from the housing register a greater number of those who have ADHD and ASD than of those who do not have those disabilities (19(2)(b)); and that it puts, or would put, her at that disadvantage (19(2)(c)). The Defendant’s case is that the evidence on which the Claimant relies for the purposes of both sections is inadequate to its purpose.

I begin with a consideration of group disadvantage. No statistics have been produced, or, seemingly, kept, as to the proportion of those who have been excluded under rule (d) who have ADHD or ASD. The Claimant’s approach to establishing group disadvantage proceeds in three steps:

The Claimant relies upon the Fox and SWIFT reports, the BIJ article and the DRC Report. Whether each of those documents is considered in isolation or in combination with the others, in my judgement the Defendant is right to contend that none establishes the group disadvantage for which she contends:

I have also had regard to such ‘background data’ as the Defendant has been able to collect, as set out in Mr Hall’s witness statement, at paragraphs 39 to 45. The data kept is broad brush and relates: (1) to the number of new applicants who have joined the housing register in the period spanning 2019 to July 2022; and (2) of those applications, the number of households having unspecified disability/mobility needs. Data recording relating to disability is captured at application stage. The Defendant is only able to capture the information volunteered in the application. In the past two years, only one applicant has been excluded from the housing register. Neither that applicant nor a member of the household was disabled.

Standing back and viewing all available material in the round, I am satisfied that it neither establishes the relevant comparative group disadvantage nor the requisite link between any such disadvantage and the PCP. In such circumstances, in particular, I consider Mr Bano’s submission that, as a matter of logic, the relevant neurological disorders will manifest themselves in behavioural aberrations, to be misplaced. First, the underlying proposition misstates the relevant test. Secondly, it is not a matter of which judicial notice could properly be taken, in any event. Contrary to Mr Bano’s submission, the Court of Appeal in York v Grosset did not ‘have no difficulty in finding the requisite link between a serious physical disability and certain conduct, for the purposes of section 15 of the EqA’; it simply adopted the unchallenged findings of fact which the employment tribunal had made [48]. It follows that the contention that rule (d) is discriminatory contrary to section 19 of the EqA falls at the first hurdle. Had it not done so, there would have been other obstacles to its success, which I need address only briefly, as they have become moot.

I accept Ms Cullen’s submission that there was no causal link between rule (d) and the disadvantage suffered by the Claimant. Not only is there a lack of cogent evidence to the effect that either of her disabilities led to, or was associated with, the unacceptable behaviour which gave rise to the application of that rule, there is positive evidence, including that which emanated from the Claimant herself, that the cause of that behaviour and, by extension, of her exclusion from the housing register, was alcohol. There is no evidence that any dependency on alcohol (of which, in Professor Fox’s view, the Claimant was on the cusp) was itself a product of, or related to, either disability and the Claimant is not entitled to the protection of the EqA against any discrimination experienced in consequence of it; it is an excluded condition. Alternatively, the apparent relationship between the Claimant’s use of alcohol and her anti-social behaviour means that there is a material difference between the circumstances of each case, for the purposes of section 23(1) of the EqA. (See Essop [32].) Thus, had the Claimant established group disadvantage, she would not have established individual disadvantage under section 19(2)(c).

Finally, I am satisfied that, had sections 19(2)(b) and (c) been established by the Claimant, the Defendant has shown rule (d) to be a proportionate means of achieving its stated aims, the latter rightly acknowledged by Mr Bano to be legitimate. As both parties agree, the test to be applied is that set out in Bank Mellatt [74]: (1) Was the objective of the measure sufficiently important to justify the limitation of a protected right? (2) Was the measure rationally connected with the objective? (3) Could lesser measures have been used without unacceptably compromising the objective? (4) Was the impact on the Claimant’s rights, overall, disproportionate? In this case, the focus of submissions has been on the second and third limbs of that test. Mr Bano’s objection under the second limb (to the effect that rule (d) simply shifts the onus of dealing with applicants excluded by rule (d) to the private sector) ignores the Defendant’s second aim, with which rule (d) is plainly rationally connected, being the avoidance of the need for housing officers to deal with the relevant behaviour and of the associated opportunity cost, to the detriment of the majority of tenants. As to limb three — lesser measures, the short answer is that the only such measure proposed is the adoption of an absolute discretion to admit disabled applicants to the housing register, notwithstanding their unacceptable behaviour and associated unsuitability to be a tenant, as defined in rule (d). When considering the issue of justification, it is legitimate to have regard to the scheme as a whole: R (XC) [87]; R (H) [59], which, here, includes the Defendant’s unfettered right to make a direct allocation, in exceptional circumstances (whether or not it has been exercised to date). The existence of other policies within the suite, might or might not afford an additional safety valve, but it is not possible to conclude that it does so, absent any detail regarding their content and operation. Rule (d) itself allows for consideration of the relevance of any disability within its framework (see ground one), such that it enables the Defendant to take account of a disabled applicant’s disability and the measures which can be, and have been, taken to address or mitigate any related anti-social behaviour, where relevant, amongst his or her personal circumstances. On the evidence of Mr Hall, it is operated in such a way in practice. An express discretion would add nothing of substance to rule (d). The exclusion of disabled applicants from the reach of that rule (no longer advanced by Mr Bano as the appropriate lesser measure) would unacceptably compromise the legitimate aim of ensuring that the Defendant and other social housing occupants could live free from the harassment, alarm or distress which result from anti-social behaviour, in circumstances in which Government guidance recognises a registered social housing provider’s responsibility to prevent anti-social behaviour. The fact that the Welsh Government has retained legislation which has been repealed in England does not assist the Claimant and it is not suggested that the legislation in England is itself discriminatory in its effect. It would be curious if, notwithstanding the repeal of s160A(7) and (8) of the HA 1996, a housing authority would be obliged to make identical provision in order to avoid unlawful discrimination in the exercise of its responsibility to prevent anti-social behaviour. Whilst Mr Bano points to the low number of those who engage rule (d) in practice, that is to ignore the significant number of others on whom each such person’s behaviour can have a seriously detrimental effect, as exemplified by this particular case, to whose interests the Defendant must also have regard. The dicta in Ahmad, at [15], [46] and [62], resonate here, with the qualification entered by Garnham J, in R (XC) [96]: ‘Ahmad predated the Equality Act 2010 and does not address the 2010 Act’s predecessor legislation. But in my judgement, the statements of general principle which I have set out apply with considerable force to the questions whether the measure adopted was the least intrusive possible without compromising the objective, and whether it struck the right balance.’In short, I accept that the lesser measure now proposed by the Claimant is not, in fact, a lesser measure than that for which rule (d) provides and that any absolute exclusion of disabled applicants from the rule would unacceptably compromise the Defendant’s objectives. Given the safeguards within rule (d) itself and the safety valve to which I have referred, I am satisfied that the impact on the Claimant’s rights, overall, was not disproportionate.

Ground two fails.

This ground may be addressed briefly, in light of my conclusions on ground one. I am satisfied that the matters to which Mr Hall had regard were those to which rule (d) entitled him to have regard and which were encompassed by the rule’s requirement that the decision-maker consider whether the relevant behaviour would have entitled the Defendant to a possession order. Acknowledging that it would be preferable for the rule to identify them, in generic terms, expressly, there has been no major deviation from the scheme and Mr Hall’s usage of the term ‘in extremis’ in his review letter has been overplayed, whether or not when considered benevolently, in accordance with Holmes-Moorhouse [50]. It is clear from its context that, by his use of the impugned wording, Mr Hall was indicating no more than that it would require extreme circumstances for rule (d) to be engaged; that is a product of the test for which the rule provides, not of some super-imposed illegitimate consideration or administrative practice. There has been no unlawful failure to adhere to the scheme.

Ground three fails and the focus now shifts to the application of the scheme in the Claimant’s particular case.

Section 15 of the EqA provides:

As a matter of law, the Something need not be the main or sole cause of the relevant unfavourable treatment, but it must have at least a significant (or more than trivial) influence upon it, thereby amounting to an effective reason or cause for it. The putative discriminator’s motive in acting as it did is irrelevant; the enquiry is on the reason or cause for the treatment impugned and involves an objective question: Pnaiser [31].

In this case, as I have previously found when considering ground two, the available evidence does not establish that the Claimant’s anti-social behaviour arose in consequence of either of her disabilities, nor, for that matter, that her use of alcohol did so. Thus section 15(1)(a) is not established. Had it been so, I would have found that the Defendant had justified its treatment, for the purposes of section 15(1)(b). As Mr Bano submitted, the focus here is on the availability of lesser measures, my conclusions in ground two as to which are of equal application here.

In any event, in the absence of a successful attack on the scheme itself, I consider Ms Cullen’s reliance upon section 191 of, and Schedule 22 to, the EqA to be legitimate. Section 166(A)(14) of the HA 1996 requires a housing authority not to allocate housing accommodation except in accordance with its allocation scheme, meaning that the Defendant was obliged to apply rule (d) pursuant to a requirement of an enactment and, thereby, did not contravene sections 15 and 29 of the EqA (the latter falling within Part 3 of that Act). I make clear that section 191, read with Schedule 22 of the EqA does not enable a housing authority to avoid its obligations under the EqA by formulating, and then applying, a scheme which is itself discriminatory (and, as such susceptible of judicial review), but that is not the case here (see ground two).

Ground four fails.

I deal briefly with the preliminary objection raised by Ms Cullen, which was faintly pressed, and rightly so. There is no identifiable prejudice to the Defendant arising from the shift in the Claimant’s argument, nor indication of the nature of the further evidence which the Defendant might have called had that argument been advanced from the outset, which it accepted that it had had sufficient time to produce.

As to the substantive issues, sections 20, 21 and 29 of the EqA and Schedule 2 to that Act provide (materially):

The comparative test required by section 20(3), read with paragraph 2(2) of Schedule 2, is between the position of disabled persons generally and persons who are not disabled. The focus is on anticipatory changes which are applicable to a category, or sub-category, of disabled persons, as distinct from changes which are applied to individual disabled persons on an ad hoc basis (R (Rowley): [24]). Thus, it is first necessary appropriately to define the category of disabled persons in this case. Mr Bano contends for ‘people with behavioural disabilities’. Ms Cullen does not propose an alternative category but submits that Mr Bano’s proposal would inappropriately catch those having eating disorders, or addictions, a number of which might not be protected under the EqA in any event. I consider that the appropriate category is ‘people with neuropsychiatric conditions’, following the classification of ADHD set out in the SWIFT report, into which categorisation ASD would also fall. Whether or not that would encompass those having addictions or eating disorders, it is, to my mind, the right categorisation of the protected group. As to the comparator group, I share Fordham J’s view, expressed in (R)Rowley [25], that, consistent with the language of section 20(3) and of paragraph 7.13 of the Statutory Code of Practice (Services, Public Functions and Associations), issued by the EHRC (Footnote: ³) it should comprise people who are not disabled, but, like Fordham J, I am mindful that, in R (MM) [59], the Court of Appeal made reference, without criticism, to the comparison drawn by the Upper Tribunal in that case, between ‘mental health patients’ and ‘those not so disabled’, i.e. those not disabled in the same way. In the event, nothing turns on the distinction for the purposes of this case.

The duty to make reasonable adjustments only arises if the PCP is applied and results in there being substantial disadvantage in relation to the comparator group. Those are matters which must be established by evidence and which are for the Claimant to establish, together with an apparently reasonable adjustment. In seeking to establish the requisite substantial comparative disadvantage, Mr Bano relies upon the data and narrative in the DRC Report, expressly recognising that the former is not directly on point. I bear in mind that the comparative exercise in the context of which I must now consider the DRC Report is not the same exercise required by section 19(2)(b) of the EqA. Nevertheless, I consider the report to be inadequate for current purposes, too. Mr Bano is right to acknowledge that the data at figure 4 of the report is not on point. The cohorts do not correspond with the comparator group here under consideration and the studies (the oldest of which was undertaken in 1999 and the most recent in 2007) relate to formal control mechanisms different from the PCP in this case. The DRC report itself noted ‘a number of limitations with the data’, extrinsic to those concerns, most notably the lack of clarity over how systematic the collection of data about disability had been and the fact that ‘in nearly all of the studies, the authors are reliant on what has been recorded by those professionals working with those subject to action, who in turn may be reliant on self – reporting by clients’. The DRC itself recognises that its wider findings are not conclusive. Albeit that, as previously noted, it states ‘with some degree of certainty that a large percentage of those subject to anti-social behaviour measures appear likely to have or be given a diagnosis of ADHD’, that does not establish that the PCP with which this ground is concerned results in substantial comparative disadvantage to the relevant protected group. Furthermore, given the construction of rule (d) as I have found it to be, those factors which would feed into a consideration of whether to waive clause (d) (the suggested reasonable adjustment) would be considered as part of the test as it stands, itself serving to indicate that the PCP results in no comparative disadvantage. For either or both reasons, ground five falls at that hurdle and it follows that the Defendant is under no duty to make reasonable adjustments.

I have given this ground anxious consideration, in particular having noted the poor drafting of rule (d). Per Lumba [34], ‘the rule of law calls for a transparent statement… of the circumstances in which the broad, statutory criteria will be exercised’ and ‘there [is] a general rule of law that policies must be published’: see R (Roman) [121]. Further, an allocation scheme which does not explain the criteria applied for awarding reasonable preference, or indicating what circumstances it will be applied, will fail to comply with the HA 1996: Cali v Waltham Forest LBC [2007] HLR 1 [46].

Here, rule (d) in the Defendant’s published scheme does set out the circumstances in which the broad, statutory criteria will be exercised. I acknowledge that it does so in shorthand form and by reference to whether the behaviour would have entitled the Defendant to a possession order under certain grounds in the HA 1985. There is no doubt that a fuller recital of the steps and considerations entailed in that test would be of assistance and preferable. But that is not synonymous with Mr Bano’s contention that the current approach is unlawful.

This ground fails.

All grounds of review having failed, the claim is dismissed and questions of remedy do not arise.