Allocation Policy

April 23rd, 2019 by James Goudie KC

In conjoined appeals, (2019) EWCA Civ 692, R (Gullu) v Hillingdon LBC and R (Ward) v Hillingdon LBC, the Court of Appeal considered the lawfulness of Hillingdon’s housing allocation policy.  The policy prioritised people who had been resident in the local area for 10 years. That was found to discriminate indirectly against protected groups.

Lewison LJ, with whom Underhill and King LJJ agreed, identified the issue as follows:-

“Hillingdon LBC’s housing allocation policy provides that, subject to exceptions, a person who has not been continuously living in the borough for at least 10 years will not qualify to join the housing register. One of the exceptions is that an unintentionally homeless person who does not satisfy the residence requirement is entitled to join the register; but is placed in band D. Two challenges were brought against the lawfulness of that policy, on the ground that it is indirectly discriminatory on the ground of race; and cannot be justified. One, by Irish Travellers, succeeded before Supperstone J (R (TW) v London Borough of Hillingdon [2018] EWHC 1791 (Admin), [2018] PTSR 1678). The other, by a Kurdish refugee of Turkish nationality, failed before Mostyn J (R (Gullu) v London Borough of Hillingdon [2018] EWHC 1937 (Admin), [2019] HLR 4). Since the courts below reached different answers on substantially the same challenge, I granted permission to appeal.”

Lewison LJ said:-

“59.    The groups, for comparative purposes, consist on the one hand of those who share the relevant protected characteristic (“the protected group”); and on the other hand those who do not (“the comparator group”). In Ms Ward’s case the relevant characteristic is being an Irish Traveller. In Mr Gullu’s case, it is being a non-UK national. So the question in Ms Ward’s case is: are Irish Travellers put at a disadvantage in satisfying the 10-year residence requirement as compared with persons who are not Irish Travellers? In her case it was common ground that they were. The question in Mr Gullu’s case is: are non-UK nationals put at a disadvantage in satisfying the 10-year residence requirement as compared with persons who are UK nationals? …

  1. If … one asks: does a 10-year residence requirement disadvantage non-UK nationals more than UK nationals, the answer must be “yes”. A long line of cases has accepted that a residence requirement disadvantages non-UK nationals. …”

“63.    It is true that a person in one of the reasonable preference groups is permitted to join the register; but those who are homeless and cannot satisfy the 10-year residence requirement are placed in band D rather than in any higher band. That reduces their chances of being allocated accommodation; and in my judgment is a relevant disadvantage.”

“67.    … in my judgment, … it was not legitimate to distinguish the decision of Supperstone J on the ground that the reason why Irish Travellers were put at a disadvantage by the PCP was known.

  1. I therefore would hold that Mostyn J was wrong in finding that the PCP did not amount to indirect discrimination.”

As regards the PSED, performance of the PSED has a bearing on the approach both to the question of justification of indirect discrimination; and also to the alleged breach of section 11 of the Children Act 2004 in the formulation of the housing allocation policy.  Compliance with the PSED requires the decision maker to be informed about what protected groups should be considered. That will involve a duty of inquiry, so that the decision-maker is properly informed before making a decision.

Mr Gullu had established a breach of the PSED. As to justification, Lewison J said:-

“75.    This question is common to both appeals. It is important, however, to distinguish between two different questions. One question is whether the policy, taken as a whole, contains sufficient safeguards to eliminate the indirect discrimination resulting from the impugned PCP. Another, and different, question is whether any indirect discrimination is justified. Hillingdon’s argument to some extent conflated these two questions.

  1. The burden lies on the policy maker to justify the impugned PCP. It is not a legal requirement of justification that the reasons put forward in defence of the PCP must have been present to the mind of the policy maker at the time when the PCP was introduced. It is open to a policy maker to advance an ex post facto justification: …”

“81.    As I have said, I do not consider that compliance with the PSED requires a policy maker to consider, in advance of formulating a policy, its potential impact on every conceivable protected group. There must be some trigger for considering a particular group. But that is not a complete answer. It may well be the case that, in formulating a policy, a policy maker has conscientiously attempted to assess the potential indirect discriminatory effect on a number of protected groups; but has reasonably and in all good faith overlooked a particular such group. In my judgment, it is incumbent on the policy maker once confronted with the omission, to justify the discrimination as regards that particular group. If a policy amounts to indirect discrimination against group E, I do not consider that it is an answer for the policy maker to say that it has considered groups A, B, C and D.”

“86.    As I have said, the key principle is that the goal is equality of outcome. If a PCP results in a relative disadvantage as regards one protected group, any measure relied on as a “safety valve” must overcome that relative disadvantage. Put simply, if the scales are tilted in one direction, adding an equal weight to each side of the scales does not eliminate the tilt. …

  1. In addition, there is no evidence that the “safety valves” within the allocation policy have actually operated to eliminate the disadvantage to the two protected groups in issue on these appeals. …
  2. In my judgment, Supperstone J was correct to reject reliance on the “safety valves” as eliminating the indirect discrimination; and Mostyn J was wrong not to.
  3. It follows, in my judgment, that taken as a whole, Hillingdon’s housing allocation policy does indirectly discriminate against the two protected groups in issue on these appeals.”

“91.    That is not necessarily the end of the case. It is possible, in some circumstances, that indirect discrimination is justified. It is common ground that the correct approach to justification of indirect discrimination is to follow the structure described by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700 at [74]: …

  1. In some cases it may well be the case that there is indirect discrimination which can readily be justified. Thus, one exception to the 10-year residence requirement is people fleeing violence or harassment; and Hillingdon also accepts applicants under the West London Domestic Violence protocol. These exceptions may benefit women more than men; but no doubt that element of indirect discrimination is justifiable. In Essop at [29] Lady Hale gave other examples; such as fitness levels for firefighters or police officers.”

“96.    In my judgment, Hillingdon has not attempted to justify the indirect discrimination, in the sense of acknowledging that there is discrimination but then explaining why that discrimination is justified. Rather, its efforts have been directed towards showing (unsuccessfully in my judgment) that, taking the scheme as a whole, the negative effect on the relevant protected groups has been overcome. … The … question, which remained unaddressed, was whether the inclusion of more people on the register (how many?) would compromise the legitimate aim of rewarding people with a local connection; and if so, to what extent? Once that question has been asked and answered, it would then be necessary to ask and answer a third question: is the extent of the compromise of the legitimate aim unacceptable; and if so, why? That question, too, remained unasked and unanswered….

  1. Accordingly, I would hold that the indirect discrimination has not yet been justified.”

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