Outer House dismisses social tenant’s disability discrimination claim, finding no disadvantage resulted from local authority housing policy

About this case:

• Citation:
  [2026] CSOH 65
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Renucci

The petitioner and her adult children complained of damp and mould in the property she let from the respondent local authority. After her requests to be rehoused on medical grounds were rejected, the petitioner sought judicial review of the respondent’s housing allocation policy, alleging disability discrimination in terms of the Equality Act 2010.

The appeal was heard by Lord Renucci, with David Cobb appearing for the petitioner and Julie McKinlay for the respondent.

Medical priority points

The petitioner, a single parent, lived with her two adult children in social housing owned by West Dunbartonshire Council, the respondent. Her son, 28, lives with various disabilities including autism, non-epileptic seizures and Sensory Processing Disorder. Although not formally diagnosed, the petitioner’s daughter was averred to live likewise with anxiety, depression, urinary incontinence and chronic fatigue syndrome. The petitioner herself was asserted to suffer from several physical disabilities, with urinary incontinence, type 2 diabetes, osteoarthritis and fibromyalgia among their number.

In early 2024, the petitioner reported mould at the property. The respondent’s attempts to gain access to the building having failed, the issue was left unaddressed until September 2025. Although a full inspection at that date was impeded by the presence of large stacks of items “piled high” in each room, building services employed by the respondent installed upgraded fans in two rooms to address the high levels of damp and mould detected at the property.

Over the course of a number of years, the petitioner had requested on several occasions to be rehoused by the respondent. Further applications for medical priority points were likewise made and had resulted in the petitioner’s daughter being awarded 60 points. A new application was lodged in January 2025, but after an occupational therapist found no need for rehousing on medical grounds, the respondent rejected the petitioner’s claim for priority points on behalf of herself and her son.

Seeking judicial review of the respondent’s decision and of its Housing Allocations Policy (HAP), the petitioner advanced various arguments under the Equality Act 2010. The respondent’s policy, she submitted, was unlawful insofar as it failed to comply with the Public Sector Equality Duty (PSED), was both directly and indirectly discriminatory against the petitioner’s son in terms of his protected characteristic of disability, and failed to make reasonable adjustments to accommodate the requirements of persons with such a protected characteristic.

Failed to show substantial disadvantage

Beginning his decision, Lord Renucci noted: “At the heart of this petition is a complaint that the respondent has failed to award the petitioner sufficient medical points, which it is argued would significantly improve the petitioner’s request for a change of accommodation. The main reason that is advanced for the property being unsuitable for the family’s needs, standing their medical conditions, is the fact that the property has experienced long-term issues with dampness in several locations within the property. It is submitted that this dampness has had a profound effect upon the petitioner’s family and property … Notwithstanding that claim the petitioner has undermined attempts by the respondent to fully identify and rectify the problem. However, the central issue here is not the condition of the property the central issue here [sic] is the lawfulness or otherwise of the respondent’s HAP.”

Evaluating the respondent’s medical points policy, he continued: “Medical points are applied per household. A single award of points is made to the person with the most severe medical condition within the household. This is not an arbitrary decision but is one designed to ensure that the allocation of housing is based on need. Were points to be awarded to individuals within a household and be able to be aggregated this could result in a household with a number of individuals eligible for medical points being able to accumulate them from a number of minor awards thereby placing them ahead in the queue of a person with more significant needs … In deciding upon this group points based system it is clear that the respondent had due regard to the terms and requirements of section 149 of the 2010 Act and in doing so I am satisfied that the HAP complies with the PSED.”

In relation to the petitioner’s submissions regarding direct discrimination, Lord Renucci reasoned: “The issue is not whether [the petitioner’s son] would have been treated more favourably by the award of points[;] it is enough that he was not treated unfavourably by the award of no points. The HAP provides additional points for medical needs to the person in the household with the most medical needs and as such the household already has 60 additional points as a result of the medical award to NC the daughter of the petitioner. Furthermore, the points-based system of the HAP has been set up with a view to seeking to ensure the that [sic] the assessment of housing needs is applied in a fair and equitable manner. Therefore, even were the treatment of the petitioner to be deemed unfavourable it could not be said that the treatment is not a proportionate means of achieving a legitimate aim. This is particularly so in light of the fact that the household has benefited from the HAP given the additional points awarded to the petitioner’s daughter.”

Rejecting likewise the petitioner’s averments of indirect discrimination and failure to make reasonable adjustments, he concluded: “The fact that the petitioner was awarded nil points does not show that the HAP puts persons with a disability at any particular disadvantage. Other than the fact that the petitioner was awarded nil points no further evidence was produced to show that it did … In the present case for the reasons stated the petitioner has failed to establish that the HAP of the respondent puts disabled people at a substantial disadvantage in relation to the allocation of housing, with persons who are not disabled. As such the duty imposed by section 20 to make reasonable adjustments does not arise in this case.”

The petition was accordingly refused.