ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Supperstone
Strand, London, WC2A 2LL
B e f o r e :
(VICE PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION)
LORD JUSTICE LEWISON
LADY JUSTICE KING
| THE QUEEN ON THE APPLICATION OF
TERESA WARD & ORS
THE LONDON BOROUGH OF HILLINGDON
THE EQUALITY AND HUMAN
|Case No: C1/2018/1971
|IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN?S BENCH DIVISION
Mr Justice Mostyn
THE QUEEN ON THE APPLICATION OF
THE LONDON BOROUGH OF HILLINGDON
THE EQUALITY AND HUMAN RIGHTS COMMISSION
Mr Jamie Burton (instructed by Osbornes Solicitors LLP) for the Appellant Yilmaz Gullu in the second appeal
Mr Kelvin Rutledge QC & Mr Andrew Lane (instructed by London Borough of Hillingdon in both appeals) for the Appellant in the first appeal and the Respondent in the second appeal
Mr Dan Squires QC & Mr Chris Buttler (instructed by the Equality and Human Rights Commission) for the Intervener in both appeals
Hearing dates : 3rd and 4th April 2019
Crown Copyright ©
Lord Justice Lewison:
The basic legislative framework
"(3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to—
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); and
(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).
(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include—
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a person and the authority's district.
(7) The Secretary of State may by regulations—
(a) specify further descriptions of people to whom preference is to be given as mentioned in subsection (3), or
(b) amend or repeal any part of subsection (3).
(8) The Secretary of State may by regulations specify factors which a local housing authority in England must not take into account in allocating housing accommodation.
(11) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.
(14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme."
"(1) A person has a local connection with the district of a local housing authority if he has a connection with it—
(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice,
(b) because he is employed there,
(c) because of family associations, or
(d) because of special circumstances …
(6) A person has a local connection with the district of a local housing authority if he was (at any time) provided with accommodation in that district under section 95 of the Immigration and Asylum Act 1999 (support for asylum seekers)."
"a person who is recorded by the Secretary of State as a refugee within the definition in Article 1 of the Refugee Convention and who has leave to enter or remain in the United Kingdom."
"3.22 When deciding what classes of people do not qualify for an allocation, authorities should consider the implications of excluding all members of such groups. For instance, when framing residency criteria, authorities may wish to consider the position of people who are moving into the district to take up work or to escape violence, or homeless applicants or children in care who are placed out of borough."
"12. The Government is of the view that, in deciding who qualifies or does not qualify for social housing, local authorities should ensure that they prioritise applicants who can demonstrate a close association with their local area. Social housing is a scarce resource, and the Government believes that it is appropriate, proportionate and in the public interest to restrict access in this way, to ensure that, as far as possible, sufficient affordable housing is available for those amongst the local population who are on low incomes or otherwise disadvantaged and who would find it particularly difficult to find a home on the open market.
13. Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant's household) to have lived within the authority's district for a specified period of time in order to qualify for an allocation of social housing. The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years.
16. Whatever qualification criteria for social housing authorities adopt, they will need to have regard to their duties under the Equality Act 2010, as well as their duties under other relevant legislation such as s.225 of the Housing Act 2004.
18. Housing authorities should consider the need to provide for exceptions from their residency requirement; and must make an exception for certain members of the regular and reserve Armed Forces – see further at paragraph 23 below. Providing for appropriate exceptions when framing residency requirements would be in line with paragraphs 3.22 and 3.24 of the 2012 guidance.
21. These examples are not intended to be exhaustive and housing authorities may wish to consider providing for other appropriate exceptions in the light of local circumstances. In addition, authorities retain a discretion to deal with individual cases where there are exceptional circumstances."
"A person (a "service-provider") concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service."
Asylum seekers and refugees
Promoting the welfare of children
"(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children"
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) 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.
(3) The relevant protected characteristics are—
"Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment—the PCP is applied indiscriminately to all—but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot."
Hillingdon's allocation policy
"The introduction of a ten-year residential qualification criteria will have a negative impact on this group.. In addition, it will mean new residents arriving in the borough and/or country will not be able to access the Housing Register for a period for 10 years."
"Although we think the policy changes will not discriminate against some "protected" groups, it will only be possible to monitor this effectively once it is implemented. The information is not conclusive in determining whether there might be unintended consequences of the changes.
Therefore, continuous impact monitoring will be carried out which will be reported to members after a year of implementation.
2. The assessment also shows that the qualification rule relation to 10 year residency could result in a number of households who are in housing need becoming excluded from allocation of social housing. For residents who have not resided in the borough for more than 10 years, mainly BME residents, there will be a negative impact. In addition, for new BME and non BME arrivals to the borough there will be a negative impact as they will not be able to access the waiting list for 10 years.
Data has been provided on the estimated impact based on 5, 6, 7, 8 9 and 10 years. This can be used to review and consider an option that would minimise the impact."
"With regard to the requirement that 10 years living continuously in the same location amounted to local residency, members asked how this might be applied to asylum seekers.
Asylum seekers do not have access to council housing. If asylum seekers meet requirements for housing while waiting for a decision on their application, they will be placed by the UK Borders Agency wherever suitable housing is available in the UK. They will not be able to choose where to live and housing is not provided in London."
"Broadly speaking, the proposed changes will have a neutral effect on applicants with different ethnic origins – the priority that an applicant will have for housing depends entirely on their individual circumstances.
It could, however, be argued that by requiring residents to have resided in Hillingdon for ten years before they become eligible for accommodation, the Council is indirectly discriminating against applicants from a BME background. This is because, as the EIA shows, BME applicants are less likely to have resided in Hillingdon for the ten year period.
The proposed allocations policy recommends that exceptions to the ten year local connection requirement be made in appropriate cases, such as applicants who have been subjected to domestic violence. An exception may also be granted where an applicant can demonstrate that they would suffer hardship if they were not considered for housing.
As stated in the EIA, it is not anticipated that BME applicants will suffer detriment if the ten year local connection requirement is introduced. However, by permitting exemptions to avoid hardship, the circumstances of all applicants can be fully considered and the possibility of an applicant suffering any disadvantage avoided. Further, by reviewing the operation of the Allocations Policy after one year, Cabinet will be able to consider whether any changes to the policy should then be made."
"I understand that Cabinet considered the report and the Impact Assessment and approved the ten-year residence requirement as providing the most appropriate balance between the needs of those on the Housing Register and the aims of the policy, namely to support stable communities within the borough and to reward those residents who could demonstrate a stronger attachment to Hillingdon. The Scheme allows for a number of exceptions to the ten-year residence requirement in specified situations and in cases where hardship would result, which was felt to provide protection to those applicants who would otherwise be disproportionately impacted by the changes."
".. one considered it to discriminate against minorities and two that it discriminated against gypsies and Travellers."
"The Assessment states that the Policy actually seeks to advance equality of access and improved outcomes for local residents and in the circumstances there is no need for any mitigating actions."
"9. The key objectives of the Allocation Scheme, set out at para 1.2, are to:
· "Provide a fair and transparent system by which people are prioritised for social housing.
· Help those most in housing need.
· Reward residents with a long attachment to the borough.
· Encourage residents to access employment and training.
· Make best use of Hillingdon's social housing stock.
· Promote the development of sustainable mixed communities."
10. Para 1.2 further states:
"The Council will register eligible applicants who qualify for the reasonable preference criteria and certain groups who meet local priority. In addition, the Council will ensure that greater priority through 'additional preference' is given to applicants who have a longer attachment to the borough, are working, … and childless couples."
11. Paragraph 2 of the Allocation Scheme sets out eligibility and qualification rules for housing. The qualification rules include at para 2.2.4:
"Households who have not been continuously living in the borough for at least 10 years and will not qualify to join the housing register
Applicants will need to demonstrate a local connection with Hillingdon. Local connection within the terms of this scheme will normally mean that an applicant has lived in Hillingdon, through their own choice, for a minimum of 10 years up to and including the date of their application, or the date on which a decision is made on their application, whichever is later.
For purposes of continuous residence, children spending time away from home for education due to periods of study such as at university and people who have moved away up to 3 times due to the requirements of their job will be disregarded. Secure, introductory or flexible tenants of Hillingdon Council and care leavers housed outside the borough will be considered as having a local connection with Hillingdon.
People will also be considered as having a local connection with Hillingdon when they are placed in the borough of Hillingdon in temporary accommodation in accordance with sections 190(2), 193(2), 195(2) or who are occupying accommodation secured by any local authority under section 192(3)."
There are ten exceptions to this qualification. One exception is for "Statutorily homeless persons and other persons who fall within the statutory reasonable preference groups (see paragraph 12 below)".
12. Section 4 of the Allocation Scheme refers to the Council operating a 'Choice Based Lettings Scheme' through a central lettings agency known as "Locata", and section 5 sets out how the Choice Based Lettings Scheme operates. It states:
"5.1 Priority Banding
Housing need is determined by assessing the current housing circumstances of applicants. A priority 'band' is then allocated according to the urgency of the housing need. There are three priority bands as follows
Band A – This is the highest priority band and is only awarded to households with an emergency and very severe housing need.
Band B – This is the second highest band and is awarded to households with an urgent need to move.
Band C – This is the third band, and the lowest band awarded to households with an identified housing need.
If following an assessment it is determined that an applicant has no housing need, they cannot join the housing register…"
13. Section 6 of the Allocation Scheme provides that in certain specified cases, an allocation may be made outside of the Choice Based Lettings Scheme. These include "where homeless households have been in temporary accommodation for longer than the average period, they will be made one direct offer of suitable accommodation".
14. Section 12 of the Allocation Scheme ("Reasonable Preference Groups") states, so far as is relevant:
"The council will maintain the protection provided by the statutory reasonable preference criteria in order to ensure that priority for social housing goes to those in the greatest need…
12.1 Homeless household
This applies to people who are homeless within the meaning of Part 7 of the 1996 Housing Act (amended by the Homelessness Act 2002 and the Localism Act 2011).
Where the Council has been able to prevent homelessness and the main homelessness duty has been accepted, applicants will be placed in one of the following bands:
Band A – in temporary accommodation but the landlord wants the property back AND the council cannot find alternative suitable temporary accommodation. Where an applicant fails to successfully bid within 6 months, a direct offer of suitable accommodation will be made. If the property is refused the Council will discharge its duty under Part VII of the Housing Act and withdraw any temporary accommodation provided.
Band B – In Bed and Breakfast, council hostel accommodation or women's refuge.
Band C – In other forms of temporary accommodation.
Where the Council has been unable to prevent homelessness and the main homelessness duty has been accepted, applicants with less than 10 years continuous residence in the borough will be placed in Band D.
12.4 Medical grounds
If you apply for housing because your current accommodation affects a medical condition or disability, your application will be referred to the council's medical adviser or occupational therapy team depending on what you have put in your application for assessment.
12.6 Hardship grounds
There are a number of households applying to the housing register who experience serious hardship because of a combination of different factors which make the need for re-housing more urgent than when considered separately.
The decision as to the appropriate priority 'band' will depend on both the combination and degree of the various factors with a view to ensuring that the greatest priority is given to those in the greatest need.
In circumstances where this applies, a panel of officers (Hardship Panel) will undertake a review of the case to determine whether priority for re-housing is necessary.
The following priority banding will be considered
Band B – the applicant or a member of their household has multiple needs or has an urgent need to move. Examples include:
· To give or receive care or support from/to a resident in the borough, avoiding use of residential care. It is constant care to/from a close relative as evidenced by a professional's report and supported by the Council's Medical Adviser;
· Child protection reasons;
· Other urgent welfare reasons."
15. Section 14 of the Allocation Scheme ("Additional Priority") provides that additional priority is awarded in order to determine priorities between people in the reasonable and local preference groups. It is awarded in circumstances which include:
"14.2 Couples aged over 21 without children
Additional priority is awarded to couples aged 21+ without children. This will improve access to available lettings to those households without children who would otherwise be in 'Band C'.
14.3 10-year continuous residency
Additional priority is awarded to those who have a local connection by living in the borough continuously for a minimum period of ten years. This will support stable communities and reward households who have a long-term attachment to the borough.
Local connection will normally mean that an applicant has lived in Hillingdon, through their own choice, for a minimum of 10 years up to and including the date of their application, or the date on which a decision is made on their application, whichever is later.
"Refugees are very unlikely to have been resident in any Local Authority borough for 10 years."
The role of the court
"… as a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies. Of course, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, it seems unlikely that the legislature can have intended that judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge."
"Knowledge of the circumstances of applicants generally, long term strategy considerations, expertise, political and social awareness, and local knowledge all have a part to play when it comes to formulating and implementing a housing allocation scheme. With information essentially consisting of the scheme itself, the circumstances of the particular applicant and a few statistics (of questionable mutual consistency), the court should be very slow indeed to second guess Newham."
Does Hillingdon's housing allocation policy discriminate?
". In the light of that acceptance on the basis of those statistics, and the concession by Ealing on this appeal that each of the two priority schemes is a PCP, it inevitably follows that the WHPS gives rise to indirect discrimination within section 19(2) of the EA 2010. The wording of section 19(2) is precisely applicable, namely that participation in the WHPS is open to those who are not women, disabled people or elderly, and people who do have any of those characteristics will be disadvantaged in comparison because they are less likely to be in work than those who do not have those characteristics, and the claimants here are within those protected groups and would be disadvantaged.
 In short, it is contradictory of Ealing to concede, on the one hand, that for the purposes of section 19(2) of the EA 2010 the WHPS is a PCP, and, on the other hand, to seek to rely on Ealing's housing policy as a whole to rebut the PCP's discriminatory impact on the relevant protected groups. What this highlights is that the matters on which Ealing relies, the so-called safety valves, are matters which properly are relevant to justification under section 19(2)(d) of the EA 2010 rather than the existence of indirect discrimination under section 19(2)(a)–(c) of the EA 2010."
" The claimant is a recent arrival in Hillingdon who is a refugee. He is discriminated against in favour of long-term residents not because he is a refugee but because he is a short-term resident. Nobody is suggesting that discrimination on that basis is to be impugned. Indeed, as I have pointed out, it has been expressly authorised by Parliament and strongly encouraged by the government.
 The correct analogue is therefore another short-term resident who is not a refugee. That analogue might be a recent arrival from another part of the UK or a recent arrival from the EEA exercising treaty rights. The same treatment is meted out to the claimant and the analogue – both are denied priority by virtue of the 10-year residency rule. The claimant's case can only get off the ground if he can show that his circumstances and those of the analogue are materially different: that they are unalike cases. If he can show that they are unalike then the defendant has to justify the same treatment being applied to both.
 But are they unalike? Mr Burton says the circumstances of a refugee and those of a voluntary migrant from Yorkshire or France are different because the refugee has no choice but to apply in Hillingdon whereas the analogue comes to Hillingdon by choice. Further, the refugee may be more vulnerable as a result of the persecution he has suffered which has resulted in the award of refugee status. All of this is true, but so what? The reason that each has started the 10-year journey may be different but that is immaterial to the process of starting the clock and counting the days, which is all that the measure stipulates."
"… all the workers affected by the PCP in question should be considered. Then the comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact upon the group without it. This makes sense. It also matches the language of section 19(2)(b) which requires that "it"—ie the PCP in question—puts or would put persons with whom B shares the characteristic at a particular disadvantage compared with persons with whom B does not share it. There is no warrant for including only some of the persons affected by the PCP for comparison purposes. In general, therefore, identifying the PCP will also identify the pool for comparison."
"… there is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage."
"I have no doubt that the proportion of persons of non-British and non-E.E.C. nationality who wish to attend the college and who can comply with the requirement of having ordinarily resided in the E.E.C. area for three years immediately before 1 September 1982 is substantially smaller than the proportion of persons not of that group (i.e., persons who were British or E.E.C. nationals) who wish to attend the college and who can comply with it. That seems obvious and causes no difficulty."
"… the residence requirement is indirectly discriminatory because it is liable to affect a larger proportion of foreign (including EU) nationals than British nationals, because the former are inherently less likely to have lived their lives (and, in particular, the last two years) in Sandwell."
"Travellers are a nomadic people. It is in their blood and is their fundamental tradition. Therefore, as a matter of probability it is surely much more likely that an Irish traveller will not complete the 10-year journey than his or her analogue. The traveller and the analogue are unalike cases which should be treated differently."
"… in none of the various definitions of indirect discrimination, is there any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others. Thus there was no requirement in the 1975 Act that the claimant had to show why the proportion of women who could comply with the requirement was smaller than the proportion of men. It was enough that it was. There is no requirement in the Equality Act 2010 that the claimant show why the PCP puts one group sharing a particular protected characteristic at a particular disadvantage when compared with others. It is enough that it does."
"In order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put."
The public sector equality duty
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; …
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; …
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act."
"Obviously, if reasons are proffered in defence of a decision which were not present to the mind of the decision-maker at the time that it was made, this will call for greater scrutiny than would be appropriate if they could be shown to have influenced the decision-maker when the particular scheme was devised. Even retrospective judgments, however, if made within the sphere of expertise of the decision-maker, are worthy of respect, provided that they are made bona fide."
"The only consideration given to the impact of the residence requirement on "race" was in relation to BME or "white" residents. However, the adverse impacts on racial groups defined by "colour" were not the only ones that required consideration. I agree with Mr Wise and Mr Squires that a residence requirement, especially one as long as ten years, is almost certain to have a significant and adverse impact on Irish Travellers, yet the position of Irish Travellers does not appear to have been considered at all when the council conducted their equality impact assessment. No consideration has therefore been given as to whether the council has struck the correct balance between disadvantage to Irish Travellers and the aims of the residence requirement."
"As for the "safety valves", I agree with Mr Wise and Mr Squires that they are not likely to benefit Irish Travellers any more than those with other ethnic origins. There is no evidence that the council gave consideration to whether they were likely to advantage persons who are Irish Travellers over other individuals with an equal need for housing."
"It can be seen that the 10-year residence rule is not by any means the only gateway onto the register, nor is it, once you have got there, the only gateway to an uplift. There are other ways in, or up."
Can the discrimination be justified?
"… it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter … In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure."
"I turn to the four-limbed test: i) Is the objective of the rule, whether the qualification itself, or the uplift, sufficiently important to justify the limitation of a protected right? For these purposes a limitation of a protected right is assumed. In my judgment the answer to this question is plainly yes. The rule is obviously highly important and is an expression of national and local democratic processes. The actual limitation is, as I have explained, minimal and requires no more than that the claimant is treated the same as any other recent arrival.
ii) Is the measure is rationally connected to that objective? The answer to this is plainly yes.
iii) Could a less intrusive measure not have been used without unacceptably compromising the achievement of the objective? In my judgment to water down the rule for refugees to say five years would be quite wrong and arguably unlawful positive discrimination in their favour. The alternative ways in or up, set out above, entirely negate any merit which this argument might otherwise have.
iv) When balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, does the former outweigh the latter? The answer to this is plainly no. The latter greatly outweighs the former."
What could Hillingdon do?
The Children Act
"The residency criterion has, in my view, potentially a significant impact on the welfare of children of Irish Travellers. However despite the council's Children's Services engagement there are no records or documents evidencing any action they took or discussions they had to promote or safeguard the welfare of children when the residence qualification was introduced or under further consideration in 2013 or 2016. That being so, I agree with Mr Wise that the council is not in a position to demonstrate, by reference to written contemporaneous records, the process of reasoning by which they reached their decision in relation to the impact of the residency qualification and uplift on the claimants' children."
Articles 8 and 14 of the ECHR
Lady Justice King:
Lord Justice Underhill: