Allocation Policy

February 11th, 2019 by James Goudie KC

Hillingdon LBC’s 2016 housing allocation policy, pursuant to Section 166A of the Housing Act 1996, was found in some respects to be unlawful in TW v Hillingdon LBC (No. 1) (2018) PTSR 1678. Lawfulness requires compliance not only with the provisions of that Act, but also compliance with the Equality Act 2010, and with obligations under Section 11 of the Children Act 2004. In particular, in TW (No. 1) Supperstone J declared Hillingdon’s 10 year residence qualification to be

unlawful on the grounds that it was almost certain to have a significant and adverse impact on Irish Travellers; that there was no evidence that Hillingdon had sought to assess the extent of the disadvantage on Irish Travellers; that it was not therefore in a position to undertake the exercise, required by law, of considering whether that impact was justified; and that there was also no evidence of any action or discussion about the promotion or safeguarding of the welfare of Irish Traveller children in the formulation and maintenance of the residence requirement either.

Hillingdon’s 10 year requirement was also considered, shortly after TW (No. 1) in R (YG) v Hillingdon LBC (2018) EWHC 1937 (Admin).

The preliminary question before the Court in R (TW) v Hillingdon LBC (No. 2) (2019) EWHC 157 (Admin) was whether a subsequent review provided sufficient evidence that Hillingdon had assessed the extent of the disadvantageous impact of the residence requirement on Irish Travellers and their children, in practice. The Judge concluded that it did not. Hillingdon was still, therefore, not in a proper position to rely on the justifiability of the 10 year residence criterion. It may yet prove justifiable. Or it may not. The Court was not yet in a position to resolve that either way. The appropriate relief in these circumstances was to confirm that the declarations made by Supperstone J in TW (No.1) continue in force.

Localism is a legitimate and important objective in housing allocation policy. A residence criterion is a rationally connected means of achieving it. However, any particular residence criterion must be proportionate. A balance must be struck between the beneficial effects of the criterion and any disadvantageous impact on e.g. Irish Travellers.

Before it is possible for any overall conclusions to be addressed or reached by anyone about justifiability and balance, there is a preliminary piece of evidential work to be done in identifying impact. Proportionality requires a balancing exercise. It is necessary to know in the first place what it is that is being placed in the balance. In order to assess whether a difference is objectively justified, one needs to know what the scale of the differential is. For that, one needs a starting point.

Hillingdon’s review did contain a proportionality analysis. However, to be able to justify an adverse impact, it was necessary to be able to describe it and to understand it with reasonable sufficiency in the first place. The Judge did not read the review as a sufficient attempt to describe and understand the impact of its policy on Irish Travellers. Its conclusions were to that extent insufficiently supported.

Supperstone J in TW (1) inferred that there was a high probability (“almost certain”) of adverse impact, and that adverse impact was likely to be “significant”. But in TW (2) the Judge’s view was that Hillingdon had not sought to assess the extent of any disadvantage – in practice and reality, rather than in theory and probability – and it needed to. If, but only if, it has, can the question be considered of whether a disadvantage of that extent is proportionate. It is moreover a question in two parts. How does the residence criterion impact on Irish Travellers? And how does that compare with others who are not Irish Travellers?

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