R (Winder and Others) v Sandwell Metropolitan Borough Council and the Equality and Human Rights Commission (intervening) [2014] EWHC 2617 (Admin)

Case No: CO/633/2014

Date

30 July 2014

Link to judgment
http://www.cpag.org.uk/sites/default/files/Winder%20%20ors%20v%20Sandwell%202014%20EWHC%202617%20(Admin)%20(30%20July%202014).pdf

Discrimination grounds

Gender and race.

Summary of case

Challenge brought by three women affected by the Sandwell Metropolitan Borough Council residence requirement for entitlement to council tax rebate (CTR). Two of the women had been victims of domestic violence and the other had experienced mental health problems. The Council decided that this rebate would only be paid in respect of ‘those residents that have lived in the Borough of Sandwell for a minimum of two years immediately prior to the date the new claim is received by the Borough of Sandwell’.

The case was brought on six grounds:

  • Ground 1: Ultra Vires: The Council does not have the power to impose the residence requirement, because the Local Government Finance Act 1992 restricts the criteria by which classes for council tax reduction can be defined to financial criteria.
  • Ground 2: Failure to take into account material considerations.
  • Ground 3: Lack of consultation.
  • Ground 4: Barrier to freedom of movement.
  • Ground 5: Discrimination.
  • Ground 6: Breach of the Public Sector Equality Duty.

Outcome

The High Court ruled that the residence requirement was unlawful. In particular:

  • Ground 1: Ultra Vires: the Council did not have power to impose the residence requirement that it did impose in its council tax rebate Scheme for either 2013-14 or 2014-15.
  • Ground 2: Failure to take into account material considerations: the requirement is irrational, because, in imposing it, the Council failed to have regard to a number of material considerations, notably the Secretary of State’s policy objectives and the wider consequences of other authorities adopting a similar requirement
  • Ground 3: Lack of consultation: The requirement was fundamental to the Council’s CTR Scheme, and the Council failed to consult upon it.
  • Ground 4: Barrier to freedom of movement: The requirement disproportionately affects people wishing to exercise European Union (EU) free movement rights, and is therefore an unlawful obstacle to freedom of movement.
  • Ground 5: Discrimination: The requirement is indirectly discriminatory against non- British people and women, and that discrimination is unjustified. It therefore amounts to (i) indirect discrimination under EU law, (ii) indirect discrimination contrary to section 19 of the Equality Act 2010 and (iii) discrimination contrary to article 14 of the European Convention on Human Rights read with article 1 of the First Protocol to the ECHR.
  • Ground 6: Public Sector Equality Duty: The public sector equality duty under section 149 of the Equality Act 2010 was engaged; but the Council failed to conduct any Equality Impact Assessment on the requirement, or address at all the characteristics protected by the Equality Act and affected by the requirement.