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Ms Erskine claimed her Lambeth council flat was unfit to occupy because it failed the "fitness standard" imposed by the 1985 Housing Act. Had she been a tenant of a private landlord or housing association, she could have asked the council to enforce the standard by making an order for remedial work to be carried out. But the council could not enforce the standard against itself, so she had no remedy.

She claimed this involved unfair discrimination against council tenants who, unlike other tenants, were outside the protection of the statutory code. She said discrimination based on tenancy status was made unlawful by Article 14 of the 1998 Human Rights Act, Schedule 1. The judge disagreed. Before the anti-discrimination provisions could be applied, he decided, the subject matter had to be within the ambit of one of the other human rights. He said the fitness legislation was concerned with the promotion and protection of public health and the improvement of low-cost housing, not the protection of the right for respect for a home, so the discriminatory provision was not unlawful.