Disability, duality, reasonable to occupy

What is the correct route to challenge a decision of the local authority that you consider amounts to disability discrimination? This was the question recently tackled by Fordham J in the High Court. Catherine Rowlands examines the outcome.

In R (RZH) v London Borough of Sutton [2025] EWHC 713 (Admin) RZH and her son, DTU, both have autism, and RXH has sleep apnoea. RZH has a two-bedroom flat, with a shared garden, where her landlord is a housing association. She considered that it was too small for her and DTU and so applied to go on Sutton’s housing allocations scheme. She then had a daughter, and was entitled to bid for a three-bedroom property on the allocations scheme. However, she realised that she was not getting close to being allocated a house with a garden, which is what she wanted for her and her children. In an avowed attempt to get higher up the waiting list, she applied as homeless, contending that the accommodation was not reasonable for her to continue to occupy. Sutton rejected this, and upheld the decision on review, despite the representations made on her behalf that she “needed” three bedrooms and that the “usual bedroom standard should not apply”.

She appealed against that decision to the County Court under section 204 of the Housing Act 1996. She also brought a claim for judicial review of the same decision. Permission for judicial review was granted and the section 204 appeal transferred to the High Court.

But why did she need to bring two claims against the one decision? Her grounds of appeal were what might be called conventional grounds for quashing the decision of the local authority that she was not homeless. She alleged that the decision of the local authority that she did not need three bedrooms was irrational and gave inadequate weight to the views of experts that the household needed three bedrooms.

Her judicial review challenge was a claim under the Equality Act 2010 and relied upon an assertion that there was a “provision, criterion or practice”, which put her at a disadvantage as a disabled person. The PCP she identified was that Sutton would not consider someone to be homeless with the degree of overcrowding she experienced.

This was the kind of claim that the Court of Appeal held in Adesotu v Lewisham London Borough Council [2019] EWCA Civ 1405 could not be brought in the context of a section 204. The Appellant/Claimant therefore said that she needed to bring a claim for judicial review to make good her case that the local authority was acting unlawfully; she also claimed damages.

Fordham J rejected both claims. The decision that RZH was not homeless was one that Sutton was lawfully entitled to reach. He noted that the word “need” meant different things in different contexts. There was the concept of “housing need” under the allocations scheme, which would determine what size of house the applicant could bid for, and a more general concept of what a household needs; accommodation that did not meet the household’s needs did not mean that the accommodation was not reasonable to continue to occupy.

If Parliament had intended “homeless” in s.175 to mean meeting “the housing needs of the applicant”, that is what s.175(3) would have said.

He rejected the submission that there was a PCP. Sutton had simply applied the statute to the circumstances of the household and had reached a lawful decision; there was nothing to support the contention that the reviewing officer had mechanically applied the overcrowding rules. RZH had not identified a PCP that had affected the decision she complained of.

Scope of section 204 and the Adesotu exception

Fordham J took the opportunity to summarise the scope of section 204 and of the Adesotu exception:

Drawing all this together, this is the position as I see it:

1. Points of law concerning or relating to the lawfulness of a 1999 Act s.202 review decision should in principle be determined in the county court by way of s.204 appeal (Bano). A claim that a review decision is unlawful because of a PSED-breach contravention of the 2010 Act falls within the s.204 appeal (Hotak). Transferring a s.204 appeal to the High Court is available, in particular for points of general public importance or issues which the county court considers it cannot determine for itself (James32).
2. A claim that a s.202 review decision is unlawful because of a discrimination contravention of the 2010 Act has been held not to fall within the s.204 appeal (Adesotu). But the county court remains an appropriate forum by s.114(1) (Adesotu, James26). Where such a claim would be susceptible to judicial review (s.113(3)(a)) it would also be conducive to CPR Part 8 claim in the county court.
3. Dual-listing to promote the overriding objective with the parties’ cooperation (CPR 1.3) sensibly ensures that discrimination grounds impugning a s.202 review decision are decided alongside PSED and other appeal grounds.
4. This, however, is achievable in the county court: by dual-listing the s.204 appeal and Part 8 s.114(1) claim. The s.114(1) claim can be case-managed. Divergent appeal avenues are surmountable by acting to ensure, in an appropriate case, that issues of law arrive at the Court of Appeal together. Putting it another way, s.204 appeal (county court) listed with s.114(1) claim (county court) provides the solution in the county court; and avoids transferring an appeal to join a s.113(3)(a) judicial review.

What he failed to come up with was a good solution to the issues of nomenclature – Claimant, Appellant, Defendant, Respondent? – and how to set out the header properly. He also had to tackle the issue of appeals – he was able to grant permission to appeal against his own decision on the judicial review aspect of his judgment, but not on the section 204 appeal; that would be a second appeal and therefore reserved to the Court of Appeal. In fact, he refused permission.

For that reason alone, it is to be hoped that this will remain a unique example of such a hybrid process.

Catherine Rowlands is a barrister at Cornerstone Barristers.