Biden v Waverley Borough Council

Court of Appeal: Macur, Asplin and Coulson LJJ, [2022] EWCA Civ 442, 1 April 2022

The Court of Appeal dismissed the claimant’s appeal against the dismissal of her claim that the respondent authority had breached the PSED by failing to make the inquiries the claimant deemed necessary on matters relating to the incidence of gender reassignment hate crime in the area of the accommodation offered to the claimant with the assistance of  an LGBT liaison officer, rather than a police support community officer.

The claimant had refused the respondent’s offered accommodation as unsuitable because it was in an area with which she was unfamiliar, and she had been frightened and concerned that she would be a victimised as a trans woman. The court ruled that the respondent’s failure to involve an LGBT liaison officer had not resulted in a failure to have due regard to the protected characteristic of gender reassignment. Macur LJ, for the Court, noted the “very narrow” issue before the Court. She recognised at §44 that “transgender hate crime is vastly under-reported” but queried at §46 whether “assuming for the sake of argument that the LGBT officer had a better appreciation of the problems facing the transgender community in general … an unidentified “Surrey Police” LGBT liaison officer would have greater knowledge of the situation on the ground than would the local PCSO”. She characterised as “entirely misguided and contrived” the “attempt to compare the circumstances in Mrs Biden’s case with the situation in Pieretti [v Enfield LBC [2010] EWCA Civ 1104](§49) in which “the reviewing officer was held to be at fault for failing to make further inquiry in relation to “some such feature of the evidence presented to her as raised a real possibility that the applicant was disabled.”

Macur LJ went on to characterise as “absurd” the suggestion that the decision-maker’s failure to involve the LGBT liaison officer “reflect[ed] her failure to have due regard to the protected characteristic of gender reassignment” (§53) and at §54 decried the proposition, made “with some diffidence” for the claimant, that “gender reassignment as a protected characteristic creates a heightened duty on the part of the housing authority”. There was, Macur LJ declared at §55 “statutory basis for such a contention. Any enhanced or modified statutory protections which do exist are expressly stated in [the EqA] and are limited to specific circumstances, for example, the discrimination provisions unique to pregnancy and maternity. There is no corresponding provision which relates to the protected characteristic of gender reassignment.” Nor did the authorities provide any support for this suggestion.

Claimant: Timothy Straker QC and Annabel Heath, instructed by Wills Chandler Solicitors

Respondent: Kelvin Rutledge QC and Adrian Peck, instructed by Waverley Borough Council

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