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Social Housing Speed Read – Birmingham CC v Wilson

We look at the Court of Appeal's decision in Birmingham City Council v Wilson EWCA Civ 1137, where the Court held that an appeal against a homelessness decision will only consider that decision on the basis of the information available at the time.

What happened in Birmingham CC v Wilson?

Ms Wilson and her two sons were homeless, and were owed the full homeless duty by Birmingham City Council. The family was placed in temporary accommodation, on the 11th floor of a tower block. They were then offered permanent accommodation on the 8th floor of a different block, by the Council.

Ms Wilson sought a review of the Council’s offer, which was based on the detriment to the mental health of one of her sons which was caused by fear of heights – and exacerbated by this type of accommodation.

The evidence for this was unclear, however, and no medical evidence to support these mental health issues was available to the Council at that time. The Council’s investigating officer made his enquiries, and upheld the suitability of the permanent accommodation offer.

Dissatisfied with this finding, Ms Wilson appealed to the County Court, where the District Judge found that the Council hadn’t assessed whether one of her sons was disabled for the purposes of the 2010 Equality Act – “inadequate enquiries” had been made. Relying on Pieretti v London Borough of Enfield EWCA Civ 1104 the District Judge saw it that the Council was, once the evidence suggested a “real possibility”, obliged to make full enquiries regarding any disability.

The Council appealed this and the Court of Appeal overturned this decision.

Why did the Court of Appeal overturn this decision?

The Court of Appeal found that the first instance judge had erred in his decision, because the question which he posed and answered was whether there was a real possibility of there being a mental disability – which he found there was.

However, the Court of Appeal held that the correct line of questioning was whether the local authority’s reviewing officer could, at the end of his investigation, have found that there was no real possibility of either of Ms Wilson’s children having a mental disability.

On the facts, the officer had not ignored the possibility but had sought further information on the condition to be provided to him – which was not forthcoming. On the information available at the time, then, the review officer was disposed to find that there was no “relevant” disability.

It was later confirmed that one of Ms Wilson’s sons did have a condition which would be considered a disability for Equality Act purposes, however the Court of Appeal focused on the contemporary rationality and correctness of the review officer’s finding, in its judgment.

What lessons can we take from this decision?

The information available about the applicant and their family at the time of the decision is the evidence on which the decision-making process will be judged. Local authorities must give due process and consideration to their duties under the Equality Act, and make reasonable enquiries.

Practical Point: clarity in forms

Whilst the Court of Appeal found for the Council, the Court also criticised the local authority for the poor clarity of the paperwork provided to Ms Wilson as part of the process. The Court stated that whilst the case did not turn on the Council’s paperwork, it would benefit from supporting materials which explained the options available to recipients of social housing.

To this end, it is essential that tenants’ options when completing forms are, at all stages of the homelessness and allocations process, presented clearly, are well-structured and that extra support is available to those who need it.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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