In R (TW, SW and EM) v Hillingdon LBC [2018] EWHC 1791(Admin) the Claimants challenged the Social Housing Allocation Policy (December 2016) (“the Allocation Scheme”) of the London Borough of Hillingdon (“the Council”) in so far as it provides: (1) a condition that only households with at least 10 years’ continuous residence in-borough qualify to join the three welfare-based bands (A-C) of its housing register (“the residence qualification”); (2) additional preference for such households who are in Bands C and B of the housing register (“the residence uplift”), and (3) additional preference for those in Bands C and B who are working households on low income (“the working household uplift”). Choudhury J granted permission on three grounds. First, that both the residence qualification and the residence uplift discriminate indirectly and unlawfully under Sections 19 and 29 of the Equality Act 2010 (“EA”) against persons with the protected characteristic of “race” and that, as Irish Travellers, the Claimants have such a characteristic (Ground 1). Second, that the working household uplift discriminates indirectly and unlawfully under the same statutory provisions against persons with the protected characteristics of “disability” and “sex” (Ground 2). Third, in formulating the three provisions under challenge the Defendant acted in breach of its obligations under Section 11(2) of the Children Act 2004 (“CA”) (Ground 3).
Following the full hearing, Supperstone J was satisfied that (1) the residence qualification and uplift are unlawful, and (2) the Council breached their duty under Section 11(2) CA in formulating and maintaining these provisions. The claim for judicial review was allowed to that extent. He did not, however, consider that the working household uplift is unlawful or that the Council acted in breach of their obligations under Section 11(2) CA in formulating and maintaining that provision. Accordingly those parts of the claim failed. On the basis of his findings, the appropriate relief was declarations to the effect that the residency qualification and uplift are unlawful, and that the Council acted in breach of their obligations under Section 11(2) CA in formulating and maintaining those provisions.
The Council’s defence to the discrimination challenges, Grounds 1 and 2, was one of justification, i.e. proportionality, under Section 19(2)(d) EA. Supperstone J stated, at paragraph 50, that the “real problem” for the Council in attempting to justify the ten years’ residence qualification and uplift was the “paucity and inadequacy of their evidence”. He concluded, at paragraph 60, that the Council’s evidence failed to justify the impact of the ten-year residential qualification and uplift.
As regards the working household uplift, however, Supperstone J, at paragraph 68, found justification. He said, at paragraph 72:-
“I consider that a fair balance has been struck between the importance of securing the Council’s objective in introducing the working household uplift by way of additional preference to help those with a specific predicament and the effect of the discrimination on the Claimants’ rights. In my judgment, having regard to the various “safety valves” in the Scheme that potentially assist persons with the protected characteristics of sex and disability, the focussed and limited working household uplift can be justified when the Allocation Scheme is considered as a whole (R (H) v Ealing LBC at para 85).”
As regards Ground 3, breach of Section 11(2) of CA, Supperstone J found, at paragraph 79, that the Council breached that duty in relation to the imposition and maintenance of the residential qualification and uplift. However, at paragraph 80, he took a different view in relation to the working household uplift.