Published On: 18th April 2024

But child survivor still waiting to be reunited with her mum in safe home.

PILC is relieved that the High Court has ruled a housing policy that denied a child survivor of sexual abuse and her mother a safe home to be unlawful. 

The Court found Westminster’s ‘reciprocal transfer’ policy to be indirectly discriminatory against women and girls and a breach of the council’s public sector equality duty. It also found the decision to refuse a reciprocal transfer in breach of the council’s obligations to properly consider the needs of a child.

The Background

The Claimant is a social housing tenant in a London borough. Whilst at that property, the Claimant’s child daughter was sexually abused by a neighbour over a number of years. 

As a result, the daughter has experienced significant mental health issues, including drug use and self-harm. She has suffered a period of homelessness and has been excluded from school. 

Since learning of the abuse in 2021, the Claimant has worked tirelessly to find her and her daughter somewhere safe to live, away from the abusive neighbour. She has faced extraordinary barriers in doing so. 

To safeguard her daughter, the Claimant has been forced to send her to live with relatives abroad. The Claimant meanwhile continues to live next to her daughter’s abuser. 

Unable to find a safe property within their own stock, the Claimant’s social housing provider contacted Westminster to request what’s known as a reciprocal transfer. That request was refused by Westminster on the basis that they would not allow the family to ‘queue jump’ those in other priority groups. 

It was this decision that we sought to challenge.

The Legal Challenge

Survivors fleeing domestic and sexual abuse are often unable to return home. For council and housing association tenants, fleeing accommodation can result in a loss of social housing altogether. With only 12% of those fleeing domestic abuse subsequently being granted social housing, this loss is often permanent. 

Reciprocal transfers enable social tenants who are at risk of abuse or violence to move to a safe area while retaining their tenancy. 

Women are disproportionately more likely to need a reciprocal housing transfer than men. The Pan-London Housing Reciprocal Scheme published data showing that almost 9 out of 10 applicants under the scheme are women, and 63% of those were fleeing some form of violence against women and girls. 

Westminster’s policy on reciprocal transfers is contained in paragraph 5.3 of their Housing Allocation Scheme, and imposes significant obstacles to those seeking to obtain a reciprocal transfer.

The Claimant’s case was that the policy fails to ensure that those forced to flee across boroughs to escape domestic and sexual abuse would be adequately protected. 

We sought to challenge the reciprocal transfer policy, and the refusal of our client’s reciprocal transfer under that policy, on the following grounds: 

  • That the policy indirectly discrimination on the basis of sex contrary to Equality Act 2010, s19; 
  • That there was a failure to comply with the public sector equality duty under Equality Act 2010, s149; 
  • That there was a breach of the Claimant’s rights under Article 14 of the European Convention on Human Rights (read with Article 8); 
  • That Westminster had failed to have regard to the need to safeguard and promote the welfare of children under Children Act 2004, s11; and
  • That Westminster Council had unlawfully ‘fettered its discretion’ in relation to those seeking a reciprocal transfer.

The Judgment

The Court found that Westminster’s reciprocal transfer policy effectively imposed a residence requirement, subjecting those who were not Westminster tenants to a more onerous set of conditions than those who were Westminster tenants. 

In the absence of any evidence filed by Westminster to indicate otherwise, the Court found that Westminster was not compliant with its public sector equality duty in respect of the reciprocal transfer policy. The Court also found that the policy was indirectly discriminatory on the basis of sex and that Westminster had failed to adequately justify that discrimination. 

The Court concluded that there had additionally been a failure to have regard to the need to safeguard and promote the welfare of children in the Claimant’s individual case.  

In light of the finding that both the policy and the decision were unlawful, the Court did not reach a conclusion on the other grounds. 

The Court ordered that Westminster: 

  1. Review its reciprocal transfer policy and as part of that review undertake an equality impact assessment, taking into account representations made by the Public Interest Law Centre;
  2. Reconsider the Claimant’s application for reciprocal transfer within 28 days, as though she were a tenant of Westminster; and 
  3. Pay the Claimant damages. 

A Warning to Other Local Authorities

Far more needs to be done by local authorities nationally to ensure that survivors of domestic and sexual abuse are able to maintain their social housing when fleeing abuse. 

PILC’s Sam Tippet said “It’s a relief that the Court has found Westminster Council’s policy unlawful. We hope that the council now make due amends, and find this family a safe place to live as a matter of urgency.”

He added: “Time and time again those fleeing abuse are being forced by councils to give up social housing. Survivors are having to fight to save their housing security at a time when they are suffering extreme trauma and fear. Councils must take responsibility and properly protect survivors when they most need it, instead of causing them further harm and distress.” 

Our client was represented by counsel Stephanie Harrison KC and Nadia O’Mara of the Garden Court Public Law Team with Franck Magennis previously instructed as junior counsel.

Too often, local authorities and housing associations fail to safeguard tenants who are escaping abuse. 

PILC aims to hold housing associations and local authorities to account so they can’t deny those fleeing abuse the right to somewhere safe to live.

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