H & Ors, R (On the Application Of) v Ealing London Borough Council [2016] EWHC 841 (Admin)

Ealing’s allocation policy has already had lawfulness problems, compounded by Ealing’s unlawful refusal to do anything about that unlawfulness. But this judicial review of the policy was on a different basis and confirms a whole fresh ground of unlawfulness.

The issue was that Ealing’s 2013 allocation policy set out that 20% of properties becoming available to let would be reserved for “(a) “Working Households” and (b) “Model Tenants”. In brief, a working household was one where the applicant or another member of the household worked for at least 24 hours per week. A model tenant was an applicant for transfer who already had a Council secure tenancy but who was seeking more appropriate accommodation and who had complied with the terms of the tenancy.”

Given that a transfer would free up another property, the main concern was the reservation of properties for working households (of at least 24 hours per week for 12 of the last 18 months).

The claimants were members of two households on Ealing’s housing register, both with various disabled members, including the prospective tenants who were unable to work through their disabilities and disabled children requiring extensive care. The claim was that the allocation scheme was unlawful because:

(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.

In adopting the scheme, Ealing had purportedly carried out an Equalities Impact Assessment. This, rather bewilderingly, said in relation to disability:

As to disability, the effect was said to be positive: “data on the housing register is not broken down against traditional definitions of disability as the main criteria is housing need. This automatically ensures that those with a disability or medical condition or long-term limiting illness will be given an appropriate level of housing if they are not suitably housed at the point of application.

On gender, the effect of the new scheme was said to be neutral. And the elderly were said to be given an overall preference.

The trouble for Ealing, who introduced the scheme after a 6 month pilot for which they couldn’t find the end figures, was that their own figures seemed to show something else.

For some reason, of three bedroom properties,39% were reserved for working households/model tenants, not 20%. Ealing never explained why.

More crucially, on the operation of the scheme overall, the percentage of successful applicants for allocations who are disabled was 13.5% in 2012, but 10.6% in 2015, despite the proportion of disabled application being virtually the same in each year.

On the specific arguments:

1. Indirect discrimination. Section 19 Equality Act provides

“(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.”

Ealing conceded that the provision in question was the ‘working household’ reservation. The Claimants argued that this discriminated against the disabled who were considerably less likely to be employed.

Ealing argued it was

incorrect to view the Scheme in isolation when considering its effect. Due account must be taken of the other 80% of housing stock in respect of which single parent carers who are women, the disabled and the elderly are likely in practice to be given higher priority banding than others who do not form part of such groups. Therefore, in effect, this cancels out or should be taken to cancel out any negative effects of the Scheme which after all only concerns 20% of the stock.

The Claimants deny that this is the right approach and argue that the discriminatory effects must be considered in relation to the provision in question and only that provision. The effect of other aspects of the policy is relevant, if at all, only at the stage of justification.

Overall, in addressing the principle of looking at the scheme, the court found:

It is true, by way of example, that disabled people may often be eligible for bands C or B because of their medical condition, but the reason for that priority is because their needs are perceived to be greater than able-bodied people in the first place. But that does not mean that where a significant proportion of housing stock (20% and more for certain types of house) is taken out of circulation in circumstances where they are less likely than others to be eligible, that discriminatory effect can be ignored.

Of course if the Council had introduced a “safety valve” measure in the form of an exceptionality provision, for example, so as to admit to the working household group some people who simply could not work even if they wanted to, to address this potential problem, that might be different. But it did not do so.

Mr Hutchings also argued that if it was correct to look at the Scheme in isolation from other parts of the allocation policy, it would mean that unless each and every part of the policy was itself equality-neutral, they could all be struck down as discriminatory. This is in my judgment a reductio ad absurdum. If one part of the policy gives priority to people with a certain level of medical need it would obviously discriminate against those without such need-but that goes nowhere because the latter are not protected group. Nor could it result in indirect discrimination against such a group. And so on.

And then, on the council’s own figures, it really wasn’t open to Ealing to argue that there had not been some disadvantageous effect, it was at the last not de minimis. (And of course, if the effect of the policy was de minimis, why have it?). So there was indirect discrimination.

Ealing’s attempts at justification did not go well. While encouraging tenants to work was legitimate aim, and the policy a rational means of achieving it, it could not be said to be proportionate as ‘the least intrusive’ way of achieving that aim.

The court took into account allocation policies from Barnet, Bexley and Hammersmith and Fulham which variously gave preference (without a specific reserved percentage of properties) to ‘community contribution’, which included: employment, but also voluntary work (with a discretion on elderly and disabled) – Barnet and H&F; or ‘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” – Bexley.

In that context, it was hard for Ealing to argue, as they did, that their policy measures were necessary to achieve the encouragement of employment that was the aim, as anything else would ‘dilute’ the aim. Ahmad v Newham [2009] PTSR 632 was not relevant where the issue was discrimination, rather than relative allocation of preference.

This was not ‘judicial tinkering’, as there was a solid body of evidence from these other authorities to suggest that similar policy ends could be set out while still taking into account the needs of the protected groups. Ealing had not made any form of mitigation.

While the figures on disadvantage might not be conclusive, that didn’t matter, as the policy was clearly not designed with the ‘least intrusive measure’ in mind.

Ground 1 – unjustified indirect discrimination upheld.

Ground 2 – Article 14 discrimination. This was mostly upheld on pretty the same grounds, disparate treatment under article 14 of disabled and elderly people and women. Further, there was direct discrimination against ‘non council tenants’ as they could not be model tenants. There was also disparate treatment of children of single carer parents.

There was no justification of the discrimination, whether on the usual proportionality test or the ‘manifestly without reasonable foundation test’ (without deciding which applied).

I appreciate, as Mr Hutchings points out, that the model tenant element of the Scheme is narrow and specific because it deals only with transfers and not new lettings to those who may simply be in temporary accommodation. I also appreciate that with any transfer, the property left behind will go into the general pool so the overall amount of housing stock is not reduced. But I do not accept these as answers to the challenge. The point remains that there is a class of well-behaved tenant outside this group who cannot take advantage of the Scheme and who are otherwise equally in need of better accommodation. And secondly, while other housing stock becomes available, almost by definition, it is likely to be significantly worse or smaller or less appropriate than that transferred to the moving tenants.

Mr Hutchings submits that the Court should be wary of intruding upon areas of allocation of scarce resources like housing and where there may be more than one way of achieving a legitimate aim. I agree that the mere fact of different approaches taken by other councils, does not mean that without more, the Council is bound to follow them. But the point here is a simple evidential one and goes to the critical question of the least intrusive method and fair balance. On this question it would be absurd if the Court did not have real regard to how other councils in more or less the same situation as Ealing have tackled the allocation challenges facing them where they have the same broad aims of incentivising tenants.

In my view, it cannot be said that as against the aim of encouraging tenants to work and incentivising good tenant behaviour, the Scheme is the least intrusive method without unacceptable results or that a fair balance has been achieved.

Article 14 discrimination found.

3. Breach of Public Sector Equality Duty

Well, you can guess where this will go…

As for the original Equalities Analysis, first there was no proper consideration of how the Scheme might affect the protected groups, which is surprising in the light of the earlier references to the risk of disadvantage in the 2012 documents. Its overall impact in relation to disabilities was said to be positive but it is not explained how. Also the Equalities Analysis says that gender alone is not relevant to access to social housing but it plainly it is, as far as the Scheme itself is concerned because of the likelihood that women who are carers will not be able to qualify. […]

It is true that Ms Parsonage says that she has had training in the PSED but that is no substitute for explaining what she actually did in order to ensure that the Council complied with it. This is all the more surprising given that in paragraph 24 of her WS, she says that the position of some households within the groups of women, the elderly and disabled, would undoubtedly be better if the working households priority did not exist, that the allocations policy would do more to advance equality of opportunity and that the working households priority fails to do this. She did go on to say in paragraph 28 that to remove the discriminatory effect “altogether” would seriously compromise the achievement of the aim of encouraging tenants to work; but that does not follow at all if a more nuanced approach was taken, as suggested above.

What is missing in my judgment is any real enquiry into and consideration of the potential discriminatory effects of the working households element of the Scheme in particular.

Thus, breach of the PSED.

4. Breach of section 11 Children Act 2004

Section 11 (2) of the Children Act 2004 is imposes an obligation on the Council to ensure that in discharging its functions, regard must be had to the need to safeguard and promote the welfare of children.

Unsurprisingly, the court held that:

Not all children may be adversely affected by the Scheme but those with single-parent carers who cannot work, will be.

(…) there appears to have been no actual consideration of the interests of children in this context.

Breach of the Act upheld

Relief to be determined, but arguments from Ealing about delay rejected, not least in the light of their recent ‘review’ of the scheme.

Comment

Oh dear. Oh dear again. Still, at least this judgment landed while Ealing are still reconsidering their allocation policy from the last JRs.

In response to Inside Housing, Ealing rather plaintively stated that they were ‘seeking legal advice’ on the judgment. With the benefit of hindsight, perhaps they should have sought it before implementing the scheme.

I have heard that people responsible for drafting the scheme are shocked and upset by the judgment because they believe that they had express permission from the government in the Localism Act and the CLG guidance to the Act to offer preference to working households.

So they did, so they very much did, but the question is – and this is one that other councils should pay due regard to – at whose expense? While a scheme offering a preference to working households could be entirely legitimate, this can’t be simply by reducing the chances of the disabled, or on a gender basis, or with an undue impact upon children.

Is it possible to devise such a scheme without a significant discriminatory effect, or at least with discretionary adjustments? Yes. Should serious consideration be paid to the possible direct or indirect effects on people with protected characteristics, and to duties under the Children Act, when devising a scheme? Yes. Because those are statutory obligations. As the court put it in relation to the evidence of Ms Parsonage, the Council’s Director of Safer Communities and Housing:

It is true that Ms Parsonage says that she has had training in the PSED but that is no substitute for explaining what she actually did in order to ensure that the Council complied with it.

For heaven’s sake, even Barnet’s allocation scheme was looked on by the court as being less crudely discriminatory in effect than Ealing’s.

What is more, there are these unexplained oddities, like 39% of 3 bed properties being ‘reserved’ for working household, not the 20% that the scheme would suggest.

Given this and the recent run of them, it seems like judicial reviews of allocation policies are back. While Ahmad v Newham in 2009 might have ended the previous run of successful judicial reviews, and then the apparent flexibility given by the Localism Act 2012 made further challenges difficult, it would seem that some local authorities have mistaken flexibility for ‘do what you will’, and proceeded to ignore, or pay lip service, to their equality duties and their duties to give reasonable preference to the statutory groups.