Making sufficient enquiries — gender reassignment and the public sector equality duty

The Court of Appeal has rejected the appeal of a transgender woman against her local authority’s decision to discharge its homelessness duty following the rejection of an offer of accommodation. Biden v Waverley Borough Council [2022] EWCA Civ 442 provides helpful guidance to local authorities on appropriate enquiries to be made when making or assessing offers of suitable accommodation, but also makes points all registered providers can draw on when considering how to satisfactorily comply with their public sector equality duty where the person affected by any decision has the protected characteristic of gender reassignment.

Mrs Biden, a disabled transgender woman, made a homelessness application to Waverley BC following receipt of a section 21 notice from her private landlord. Waverley made a final offer of a ground floor flat let by a housing association, approximately 0.9 miles from her current home. Mrs Biden refused the offer on the basis that it was unsuitable, and Waverley subsequently wrote to her stating its relief duty had been discharged. Mrs Biden requested a review of both the suitability of the property offered, and the subsequent decision by Waverley to discharge its relief duty.

In her submissions requesting the review, Mrs Biden referred to various reasons Waverley’s offer was unsuitable including her gender reassignment and that she had been the victim of many incidents which had left her frightened and concerned to be in remote unfamiliar areas. Gender reassignment is a protected characteristic for the purposes of the Equality Act 2010, and Mrs Biden argued that it had not been considered by Waverley when considering the suitability of its offer.

Both decisions were reviewed by a Waverley housing options manager, Ms Donaldson.

In her review, Ms Donaldson referred to Mrs Biden being a transwoman and her gender dysphoria, together with the impact of that on her mental health and her anxiety about being in unfamiliar or remote areas due to incidents she had experienced, and the tendency for transgender people to feel anxious when out in the community due to concern about being victimised by wider society. 

Ms Donaldson also made enquiries of a local PCSO about reported crime in the relevant area. The PCSO’s response was that it was low, that there was no evidence of LGBT+ hate crime in the area, and that they were not aware of any individuals ‘harbouring any grudges’ towards members of the LGBT+ community in the area. The PCSO considered they would have no concerns for Mrs Biden’s safety in the local area.  

Having considered the above, various other aspects of Mrs Biden’s submissions, and all of the available information, Ms Donaldson was satisfied the final offer of accommodation was suitable and that Waverley’s relief duty was at an end.

Mrs Biden subsequently appealed Ms Donaldson’s decision in the county court. The appeal was dismissed. Mrs Biden appealed to the Court of Appeal, where the issue to be determined was whether Ms Donaldson should have made the enquiries that she deemed necessary on matters relating to incidences of gender reassignment hate crime in the relevant area to a specialist LGBT liaison officer rather than a PCSO.

The Court of Appeal recognised that hate crimes against members of the transgender community are likely to be underreported. However, they did not accept that an LGBT liaison officer would have greater knowledge of the situation on the ground than the local PCSO. There was no evidence from an LGBT liaison officer that contradicted the information provided by the PCSO, neither was it claimed by Mrs Biden that any information provided by the liaison officer would have been different.

The relevant enquiries that needed to be made were those necessary fairly to make a decision regarding the suitability of accommodation for Mrs Biden. The scope and scale of the necessary enquiries were a matter for the local authority, and the court should not intervene unless they were satisfied no other reasonable housing authority could have been satisfied on the basis of the enquiries made.

In her leading judgment, LJ Macur labelled it ‘absurd’ to suggest Ms Donaldson’s failure to expand the scope of her inquiries to involve the LGBT liaison officer was reflective of a failure to have due regard to Mrs Biden’s protected characteristic of gender reassignment (as Waverley were required to have in discharge of its public sector equality duty pursuant to section 149 Equality Act 2010). On the facts of this case, Ms Donaldson had in fact then proceeded in her review on the basis Mrs Biden might be physically confronted by transphobic individuals and would be at a disadvantage in removing herself.

LJ Macur also rejected Mrs Biden’s submission that gender reassignment as a protected characteristic created a heightened duty on the part of the housing authority. She also categorised any attempt to categorise the inquiries made by Ms Donaldson as a disregard for the PSED as ‘hopeless’, commenting that Ms Donaldson gave ‘very sharp focus’ to Mrs Biden’s circumstances, was alive to her protected characteristics, placed them in the content of all other statutory guidance, and made relevant and reasonable enquiries of appropriate agencies having regard to Mrs Biden’s concerns.

The Court of Appeal accordingly dismissed Mrs Biden’s appeal.

This is an interesting case and provides helpful guidance not just to local authorities but also to other social landlords about how to approach decisions or contemplated action that will impact on transgender tenants. The case also demonstrates the importance of a rigorous and detailed assessment of the potential impact of those decisions or actions on a person with any protected characteristic, and the value of detailed records of those considerations to evidence compliance with the public sector equality duty.