Justine Compton, Miguel Sanchez and Simon Mullings recount a recent possession proceedings case that shows how valuable the Equality Act 2010 can be for transgender tenants.
You will have been on the training. You might be able to confidently reel off the full list of protected characteristics. A printout of the relevant case law may well be lurking in your work bag. Even so, it is not always the case that Equality Act 2010 (EA) cases present fully formed and ready to be argued. Happily, even post-Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), legal advice, representation and advocacy in the courts and elsewhere can be a collaborative venture where different skills, roles and experiences can combine to achieve significant and life-changing outcomes.
However, the case against J seemed like it might be unanswerable. J was a secure tenant of a London local authority. Her council landlord was seeking possession of her home of several years. It sought possession on the following grounds:
•J had ceased to reside in the premises as her only or principal home – relying on a notice to quit;
•Housing Act (HA) 1985 Sch 2 Ground 1 – rent arrears, failing to occupy as only or principal home, absence of a period longer than six weeks, subletting/parting with possession without permission to do so; and
•HA 1985 Sch 2 Ground 5 – inducing tenancy to be granted by a false statement.
Instructions to solicitors
J instructed that her name was registered with the Land Registry on another property in the south Midlands, she was registered with a GP near to the other property and her bank was also nearby. She mostly operated in cash and had little evidence showing economic activity in London. Additionally, the one-bedroom flat in London appeared to be undersized for her and her adult son.
The council’s case was convincing. J was somewhat at a loss to rebut it. It was clear that as well as having some physical health problems, she also struggled with depression and this was inhibiting her ability to provide comprehensive instructions, although we were able to establish that she had unknowingly signed documents for a friend that led to her being registered with the Land Registry. After the first meeting with J there was a sense that we had not managed to obtain the full story. Happily, that meant we did not issue completely negative advice, although the advice we did give provided some bracing realism about the prospects of success.
J later confided that there was something important that she had not disclosed. When she revealed that her birth identity was that of a man but through her life she had increasingly identified as a woman, leading to a transition operation in the early 2000s, it was not clear at first that these new instructions would have any impact on the merits of the case. It could easily be seen that the provisions of the EA were engaged but not how they could help J. In the event, and with the help of alert and thoughtful counsel, this case was to be an education in the practical application of the Act.
On its face, this case was a difficult one. However, it seemed that this was precisely the type of case where the EA should come to the client's aid. The factual matrix relied on by the council did indeed suggest a tenant who had left her flat and set up home elsewhere, that is, without one important fact being taken into account: J’s actions were all inextricably linked to her experience as a transgender person. J had suffered (as is common for transgender people) serious harassment in her previous accommodation: a neighbour had discovered that she was transgender, and verbal and physical abuse followed.
It was this experience that caused J to seek an exchange. However, J’s GP (whom she had to see to have regular blood tests) and bank were frequented by her previous neighbours. She was frightened and reluctant to leave her home. J sought solace in friends who had known her for many years (and, importantly, pre-transition) and escaped to visit them regularly. She registered with a GP and bank there too, as she could come and go as needed without intense fear of being abused.
The evidence that the council presented needed to be viewed through the prism of a transgender person.
The case to be pleaded was therefore clear. The evidence that the council presented needed to be viewed through the prism of a transgender person. An expert witness was willing to provide evidence on the level and nature of abuse experienced by the transgender community, which bore out J’s experiences. Independent evidence contained in part 6 of the House of Commons Women and Equalities Committee's Transgender equality. First report of session 2015–16
(HC 390, 14 January 2016) regarding transphobic harassment and violence sustained by the trans community was also relied on in support.
By EA s19(1), a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice that is discriminatory in relation to a relevant protected characteristic of B’s. Section 19(2) provides:
For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
Put briefly, J contended that the local authority was indirectly discriminating against her. The reason for seeking possession was a conclusion that J was no longer living at the property (contrary to the terms of her tenancy agreement and statutory requirements), informed by the evidence that she had links in another part of the country. Those links, however, were principally due to J’s transgender status and experiences as a transgender person. The local authority was required under the EA to view the evidence and apply the terms of the tenancy differently than if it was dealing with a non-transgender person so as not to put J at a disadvantage.
To be fair to the local authority, until the first court hearing, it had been none the wiser about J’s protected characteristic and, having considered the defence, it did not delay in withdrawing its claim for possession and agreeing to an order that made clear reference to her protected characteristic and that she had, at all times, treated her council property as her only or principal home.
Rent arrears: Citizens Advice to the rescue
However, there would still be the rent arrears claim, which was primarily a housing benefit issue. This was related to the possession claim in that housing benefit had not been paid since 2009 for reasons connected to the allegations above plus the assumption about J having capital in the form of the house in the south Midlands.
J had legal aid to defend the possession proceedings. However, LASPO Sch 1 Part 2 sets out excluded services and para 15(1) makes clear that welfare benefits work is in general excluded. The Legal Aid Agency’s FAQs document v1.3
at number 107 provides further details about what work is possible where housing benefit has led to a possession claim, but the scenario set out there was not quite the case here. In any event, since LASPO, many housing practitioners are significantly de-skilled in the finer points of housing benefit law through not doing this work on a day-to-day basis. Whatever the rights and wrongs of legal aid reforms, though, it has always been the case that advisers at Citizens Advice are extremely skilled and expert in housing benefit law and procedures, and so a referral back to them was the order of the day.
J had decisions of an overpayment of housing benefit over seven years (2009–2016) totalling £30,000 and an overpayment of council tax support of over £5,000. She also had substantial rent arrears as she had not received housing benefit since March 2016. As the original decision to stop her housing benefit had been made in July 2016, Citizens Advice had to ask for a late review under Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 SI No 1002 reg 5(3). Under reg 5(4), J had to demonstrate that it was reasonable to grant the application, that the application had merit and that special circumstances were relevant to the application as a result of which it was not practicable for it to be made within the usual time limits.
J argued that it was reasonable to grant the application due to her various health problems, including her depression. She also argued that her application for a late revision had merit because:
•she provided very solid reasons/explanations for using a GP and bank, and spending time with friends, in the south Midlands, which were related to her transgender status and experiences. Furthermore, in the context of possession proceedings, the local authority had agreed a consent order accepting that her council property was her main residence. J had very strong grounds to demonstrate that she was residing in the property;
•although J was legally a joint owner of a property in the south Midlands, the property had no capital value. In order to prove this point, J was asked to provide an up-to-date mortgage statement and a letter from an estate agency showing the market value of the property. As the charge on the property was more than the market value, the capital value of the property was nil, as J could not raise any money if she were to sell it.
J relied on Housing Benefit Regulations 2006 SI No 213 reg 47(a):
Capital which a claimant possesses in the United Kingdom shall be calculated –
(a) … at its current market or surrender value less –
(i) where there would be expenses attributable to sale, 10 per cent; and
(ii) the amount of any encumbrance secured on it …
The local authority accepted the late review but didn’t change the decision. However, J appealed using the same arguments and the decision was revised before the matter was heard at the tribunal. She was awarded housing benefit for an eight-year period, thereby extinguishing the arrears that had accrued.
A team effort
This was, in reality, like a relay race, with the authors each taking the baton and managing to finish. J has told us she feels a heavy burden has been taken from her shoulders and she can return to normal life. It seems to us that this is precisely the outcome that a properly funded, specialised team of welfare professionals can achieve.
Justine Compton is a barrister at Garden Court Chambers. Miguel Sanchez is a specialist debt/welfare benefit adviser at Citizens Advice. Simon Mullings is a caseworker at Edwards Duthie.