Administrative Court: Knowles CBE J, [2020] EWHC 3416 (Admin), 14 December 2020

This was a claim brought by asylum seekers who, their claims having been rejected by the defendant, were not permitted to work or to access public funds while they awaited the defendant’s consideration of their further representations. The defendant had accepted that she was under a duty to provide accommodation or arrange for the provision of accommodation to the claimants under s4(2) Immigration and Asylum Act 1999 (“the 1999 Act”).The claimants brought a number of challenges to the defendant’s provision of that accommodation. This note is concerned only with the disability discrimination and PSED challenges brought under the Equality Act 2010. The main challenge was to delays in the defendant’s provision of accommodation which in one case had not occurred by the time he was granted asylum 42 days after the s4(2) decision, and in the other cases occurred between 60 days and 9 months after the s4(2) decisions, and in two of these cases only after Orders of the High Court.  The defendant’s policy stated that accommodation should be provided within 48 hours in the case of street homeless persons, otherwise within 5-9 days. In the intervening period the claimants, who were disabled to varying degrees or (in one case) suffered from addiction problems, had been reliant upon charities, friends and/ or churches. One claimant (AA) who suffered from end stage kidney disease, was street homeless during part of his wait for accommodation. When (full-board) accommodation was eventually provided it did not allow his dietary requirements to be met. Subsequent accommodation was unsuitable given his disabilities. In total he waited for 9 months before suitable accommodation was provided.

The defendant asserted that delays in the provision of accommodation were the responsibility of the claimants who had, variously, been unavailable at attempted pick-ups of which they had not been notified in advance. Knowles J found that attempts to blame claimants were unjustified or false, and stated at §92 his “regret to [have] come from this review with the sense that the worst is assumed of the claimants, with no room for reflection that there may be good reasons or if there is fault that it may lie elsewhere”, a state of affairs which (§93) was “unhappy in any situation but especially so where the claimants are individuals whom the Secretary of State through her officials has accepted need accommodation”. He was generally critical of the defendant attitude to the claimants and to the litigation.

The claimants alleged that the way in which the defendant operated the system for the provision of accommodation pursuant to s4(2) decisions breached her obligations under ss 20 and 29 Equality Act 2010 to make reasonable adjustments for disability, breached the public sector equality duty (PSED), and resulted in disability-related discrimination contrary to s15 of the Act in relation to the claimants. The Judge ruled that AA had been discriminated against under s15 by being denied suitable accommodation for a period of 9 months notwithstanding a number of requests from the defendant to the contractor to which she had charged with arranging the provision of s4(2) accommodation (§267). He also ruled that the system operated by the defendant, taken as a whole, delivered unfavourable treatment of disabled s4(2) applicants (§§268-308), making reference in particular to the defendant’s failure to monitor the number of disabled persons in the system and to the defendant’s acknowledgment that “For cases with specific needs or specific locations, it is unlikely that any [appropriate property] will be found within 14 days.”

Knowles J pointed out that, while:

“275. Not every disabled person will have … ‘specific needs’ (including for location… under the system disabled persons are unlikely to be provided with accommodation within the periods set out in the Guidance; in this respect the Guidance does not in practice apply to them. Of course, there is also evidence in these proceedings that the treatment of non-disabled people falls short of the claims made for the system on behalf of the Secretary of State. But the position is still relative.
276. It is argued for the Secretary of State that the system did not place AA (or like severely disabled people) at a particular disadvantage when compared to other groups offered for comparison. The first comparison offered was with “non-disabled asylum seekers (particularly those who are street homeless or imminently street homeless)”. The relevant comparison is however with non-disabled individuals entitled to section 4(2) accommodation. That comparison is adverse to the Secretary of State.
277. The second comparison offered was with “non-disabled failed asylum seekers [who have] special requirements as to their living arrangements and in particular whether their accommodation is accessible, e.g. non-disabled asylum seekers who are pregnant or have small children”. This is simply to identify another group that the system may place at a particular disadvantage; it does not avoid the relevant comparison.
278. The third comparison offered was with “disabled recipients of income support but who may also have to make long journeys several times a week to receive treatment”. This third comparison is again simply to identify another group (this time outside the area asylum and immigration) that may be at a particular disadvantage. For present purposes however it is sufficient to say that the comparison does not appear to keep in mind that an individual entitled to section 4(2) accommodation faces “an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life” and is prevented from addressing these needs in any other way including by recourse to public funds such as income support. This is the context in which the Secretary of State owes her section 4(2) duty.
279. In my judgment there is no question that the practice of the Secretary of State in operating a system that for cases with specific needs is unlikely to provide appropriate property within the period set by the Guidance places severely disabled people at an unfair disadvantage. Ms Leventhal is correct in her contention that the delays and failings in the case of AA “are indicative of wider systemic failures” for severely disabled people.”

Knowles J went on to find that the defendant’s attempts at justification in relation to AA failed as it was “impossible to accept” that suitable accommodation was unavailable for AA in London (where he was being treated) in view of the defendant’s insistence that cost was not an issue; where there was (§284) “no rational connection between the interest of immigration control and unfavourable treatment of disabled people” and, in any event, it was “disproportionate to treat disabled people unfavourably in the interests of immigration control”. The defendant could not rely on considerations of supply in the absence of proper monitoring, which absence also meant that the defendant had failed in its anticipatory duty to make reasonable adjustments. Knowles J noted that the contract under which the defendant provided initial accommodation (as distinct from the longer-term dispersal accommodation which was at issue in the instant case) specified that a minimum 5% of bedrooms should be appropriately adapted to meet the needs of disabled individuals, and that the system of prioritising accommodation requests had been shown not to be working.
The Judge also found a breach of the PSED by reason in particular of the failure to monitor the position as regards disabled s4(2) applicants: “Where a system for section 4(2) accommodation will take longer for a person with a disability than a person without, the system requires examination to understand why and, where appropriate, to address the position” (§320). The defendant could not rely on the existence of policies or contractual provisions requiring the accommodation provider to address the needs of service users which “do not appear to be working generally” (§322), nor (absent monitoring of problems) on the argument that the system for which she was responsible was (§323) “capable of working properly”:

“325. As things stand, I have no alternative but to find that the Secretary of State is in breach of the public sector equality duty in failing, once she has reached a decision that she has a duty to accommodate under section 4(2) of the 1999 Act, to monitor the provision of that section 4(2) accommodation to individuals who have a disability. In this respect the Secretary of State has not, in the exercise of her functions, had due regard to the need to eliminate discrimination and to the need to advance equality of opportunity between persons who share the protected characteristic of disability and persons who do not share it.”

Claimants: Alex Goodman and Ms Katherine Barnes , instructed by Deighton Pierce Glynn Solicitors DMA, AHK, BK and ELN; Zoe Leventhal and Ben Amunwa, instructed by Deighton Pierce Glynn Solicitors for the Claimant AA

Defendant: Robin Tam QC, Shakil Najib and Emily Wilsdon, instructed by the Government Legal Department

post modified 15 January 2022