QUEENS BENCH DIVISION
B e f o r e :
(sitting as a Judge of the High Court)
|(on the application of H and others)||Claimant|
|EALING LONDON BOROUGH COUNCIL||Defendant|
Matt Hutchings (instructed by Legal Department, Ealing London Borough Council) for the Defendant
Hearing date: 3 March 2016
Crown Copyright ©
(1) It indirectly discriminates against women, disabled and elderly persons within the meaning of s19 (2) of the Act and such discrimination is not justified;
(2) It is in breach of Article 14 of the ECHR because the Scheme falls within the ambit of Article 8 and discriminates against women, children, disabled persons, the elderly and tenants who do not hold Council tenancies; all of these groups have "status" for the purpose of Article 14 and again, the discrimination is not justified;
(3) In adopting and maintaining the Scheme, the Council was in breach of its public sector equality duty ("PSED") under s149 of the Act; and
(4) In adopting and maintaining the Scheme, the Council is also in breach of its obligations in respect of the welfare of children imposed by s11 of the Children Act 2004.
THE BASIC FACTS
Introduction of the Scheme
(1) Band A: Emergency and Top Priority Members;
(2) Band B: Members with an urgent need to move;
(3) Band C: Members with an identified housing need, and
(4) Band D: No priority status, ie all the remaining seekers of Council housing. They cannot actively bid for properties save those which are not wanted by anyone in the higher bands.
(1) 20% of lettings will be made available to applicants from working households and those Council tenants who comply with their tenancy agreement and pay their rent and Council tax;
(2) The definition of a 'working household' is where they have been 'employed for a minimum of 24 hours a week and for 12 out of the last 18 months';
(3) 'Model tenants' are 'existing tenants who have demonstrated that they are "model" tenants by complying with the terms of their tenancy agreement for a specified period of time'. In particular they:
(a) Must not have rent arrears for the previous 12 months;
(b) Must not have breached their tenancy conditions for the previous two years; and
(c) Must not have any anti-social behaviour record.
"the scheme proposes criteria to enable people to register on the Housing Register and be prioritised for social housing based on their individual circumstances and housing need consequently those registering for housing are likely to be the most economically disadvantaged and therefore contain an over-representation of households in the protected groups including the elderly, families with children, single-parent families, those with disabilities and households from ethnic minorities."
"Under the policy applicants only qualify if the work is for a minimum of 16 hours each week and where they have been employed for a minimum of 12 months. The new policy also recognised households who comply with their tenancy agreement and pay their rent and council tax. It was agreed that 20% of lettings would be made available to applicants who fall within these definitions.
There were some delays as systems were set in place to ensure that all eligible working applicants were identified and live on the system and of the 299 Council lets made between April and September 2013, 61 properties (20%). were advertised for working or play by the rules priority groups. Of the 33 for working households, only 14 went to the target group. Offers for working households were aimed at the estates where there are high proportions of benefit dependent households to develop more sustainable communities but working households have been reluctant to bid for these properties and have told us that they are looking for better quality accommodation. Of the 28 for play by the rules offers, 26 went to the intended group.
Overall there has been no change in the overall equalities profile for households allocated properties so the new policy changes do not appear to have had a negative impact on any particular equalities group. The lets for 2010/2011 and 2012/2013 as set out below for comparative purposes."
GROUND 1: INDIRECT DISCRIMINATION UNDER THE ACT
"(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."
(1) Barnet's policy, adopted in February 2015, operates by giving an increased priority band placing for those who have made a defined contribution to the community. A threshold criterion is that the household must have a current positive residence history (whether tenants of Barnet or not) which includes their being no breaches of the tenancy, no outstanding housing-related debts of more than £100, no unspent convictions and no involvement in antisocial behaviour. Then they can seek priority if they are in a working household or where voluntary work of 64 hours per month has been done or are in training or education or are ex-Armed Forces or carers. In addition there is a discretion to include within this group older or disabled people who cannot do either paid or voluntary work;
(2) Hammersmith and Fulham give increased priority on a similar basis to that offered by Barnet using almost identical wording;
(3) Bexley's policy as from 2013 allows into a higher band than otherwise those who have made a community contribution by working, taking education or training or doing voluntary work or who provide full-time care to a disabled child or elderly person and to a disabled person whose disability prevents them from participating in work related activity.
(1) First, to allow in other criteria (e.g. other forms of community contribution) whether across the board or for those who cannot work, would "dilute" the (permitted) aim of encouraging tenants back to work. Indeed it may even discourage such tenants because they are now competing in the Scheme with other tenants who do not have to work. I do not accept this. There is no evidence that this would be the case and indeed at the moment, there is no evidence that this encouragement of working households has actually led to increased employment among tenants who did not previously work. But in any event, I cannot see why some provision to enable those households who cannot work to demonstrate some other contribution will discourage the others.
(2) It is then said that other forms of community contribution will be difficult to measure. But the other local authorities referred to have adopted such criteria without it seems any real difficulty. Nor is there any basis for suggesting that the incentivising message will be less clear or blurred, because of particular provision aimed those who cannot work.
GROUND 2: DISCRIMINATION UNDER ARTICLE 14
"the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex race, colour, language… birth, or other status."
(1) there is a relevant status group said to be discriminated against;
(2) that discrimination must occur in the context of its enjoyment (or non-enjoyment) of one of the substantive rights conferred by other Articles within whose scope the provision in question can be said to operate;
(3) there must be disparate treatment leading to disadvantage in respect of the status group.
Application of Article 8
(1) the Scheme is concerned with the obtaining of stable permanent accommodation and so links to the right to a home;
(2) it also impacts upon private life because the absence of such accommodation can affect a person's physical and psychological integrity and has clearly done so in respect of these particular Claimants;
(3) finally, while the provision of accommodation may not always be vital for family life it can certainly be said directly to advance it.
GROUND 3: BREACH OF THE PSED
GROUND 4: SECTION 11 CHILDREN ACT 2004