XC, R (on the application of) v London Borough of Southwark  EWHC 736 (Admin)
This was a judicial review of Southwark’s allocation policy as it applied to transfers. Specifically, the issue was whether Southwark’s policy, in awarding ‘priority stars’ for ‘community contribution’ discriminated against women and the disabled.
There is a substantial backstory to XC’s claim, she having been Southwark’s tenant in two previous flats, and there having been voluminous emails and an LGO complaint about Southwark’s lack of action on a nuisance neighbour in respect of the current flat, which was rejected. As far as is more broadly relevant, XC asserted that she needed a transfer because of her physical disabilities – the flat was on the third floor and she asserted that the lift was often out of order – and the noise nuisance from the neighbouring flat.
Ms XC suffered from a back condition resulting in limited movement of her left hip. This resulted in limited mobility and the FTT(SEC) had found that she ‘required guidance and supervision when walking out of doors’. It was accepted that this amounted to a disability. Ms XC also asserted mental health disabilities through depression and a diagnosis of Asperger syndrome. Southwark did not accept this, but the High Court did find that she had a mild form of Asperger syndrome.
The High Court also accepted Southwark’s evidence, as undisputed, that the lift was working the majority of the time.
Southwark put Ms XC in band 4 for a transfer priority, this being the lowest priority.
Southwark’s allocation policy provided that within each band “priority is accorded by (1) a priority star system and (2) the date of registration”. One priority star is to be awarded for each of the statutory Reasonable Preference categories, for a working household and for applicants who are undertaking “a voluntary contribution”.
A voluntary contribution star is awarded where the applicant can show “a current positive local resident history” and show that he or she “have been volunteering for a continuous period of at least six months……..for a not-for-profit organisation or charity……..for a minimum of ten hours per month.”
Ms XC brought a judicial review.
On ground 1 – unfavourable treatment of a request to move, Ms XC wrongly characterised the response to her Letter before Action as a decision. On earlier letters, they were “a considered and proportionate response to persistent complaints which had not been made out”.
Grounds 2 and 3 – the priority stars and discrimination.
Ms XC argued that the priority star system, ‘rewarding’ employment and/or ‘community contribution’ were discriminatory against her as a woman and as a disabled person.
She says her disability, physical and psychiatric, makes it significantly more difficult for her to meet the criteria needed to be awarded the ‘working household’ priority star, namely to be engaged in paid employment for sixteen hours a week. She acknowledges that she told Dr Pearson 2012 that the problem with finding work was that there was often no work available, but she says her physical condition has deteriorated and it is that that makes it hard for her to find work. She says that her disability similarly makes it more difficult for her to meet criteria two of the ‘community contribution’ priority star, namely the requirement that an applicant volunteers for a community organisation for ten hours a month.
The Claimant further argues that the criteria for these two priority stars discriminate against her as a woman. She says that women are more likely to have caring responsibilities, as is the position in her own case in that she has caring responsibilities for her adult son. She says that such responsibilities make it more difficult for women either to work or to volunteer and accordingly more difficult to meet the criteria for these priority stars.
Southwark argued that these individual star points had to be considered within the overall operation of the allocation scheme and relied on R (Ahmad) v Newham LBC  UKHL 14 in relation to the overall principles of the scheme.
The High Court, following R (H and Others) v Ealing London Borough Council  EWHC 841 (Admin) on a similar scheme, found that there was indirect discrimination.
As to the first stage of that argument, I respectfully agree with Judge Waksman. In my judgment, it is perfectly plain that the effect of the priority star scheme in the present case is indirectly to discriminate against those with disabilities and against women. It is beyond argument, in my view, that to make available a benefit, here a “star” which increases the prospect of achieving preferential housing, which can more readily be acquired by those without a disability, is to discriminate against the disabled by subjecting them to a detriment.
In fact, the documents produced by the Defendant more or less acknowledge the capacity in the scheme to discriminate: their “Pre-implementation Equality Analysis” says that “disabled people are more than twice as likely to be unemployed as non-disabled people” and that there is “potential for people with disabilities to be disadvantaged within the process, particularly those with mental illness”. And that applies as much to the priority star for volunteering as it does to that for working households.
The question then was whether the indirect discrimination could be justified as a proportionate means of achieving a legitimate aim.
The High Court did not accept Southwark’s argument that the test was ‘manifestly without reasonable foundation’. As per H and Others v Ealing, the Defendant had to meet the four stage test in Bank Mellat v HM Treasury (No 2)  AC 700
(1) is there a sufficiently important objective (i.e. legitimate aim), (2) is the measure rationally connected to that objective, (3) is it the least intrusive measure which could be used without unacceptably compromising the objective and (4) in adopting the measure has the defendant struck a fair balance between the importance of securing the objective and its particular effects on the claimant’s rights?
It was accepted by the Claimant that the policy had a legitimate aim, and that the measure was connected with the objective. The issue was whether it was the least intrusive measure, and whether a fair balance was struck.
These could only be addressed by looking at the scheme as a whole, and with a view to the Govt guidance to which Southwark must have regard.The 2012 guidance states
“Local authorities are urged to consider how they can use their allocation policies to support those households who want to work, as well as those who – while unable to engage in paid employment – are contributing to their community in other ways, for example, through voluntary work…”
The scheme must therefore involve discrimination to reach its stated aims, but this is integral to any scheme based on reasonable preference, was authorised by statute and in line with Govt guidance.
On whether the scheme was the least intrusive measure that could be adopted to achieve the aim, and noting the general principles in R (Ahmad) v Newham LBC  UKHL 14 on not interfering with priority decisions in allocation schemes absent irrationality or not meeting statutory requirements, the High Court held:
Here, the Council has devised a scheme which seeks to address the needs of all the classes of applicant in its area. It has made provision for those with priority need, for the homeless and vulnerable, for those who need to move on medical or welfare or hardship grounds. It is entitled, consistent with the Secretary of State’s Guidance, to favour those in work and those who volunteer.
I can see no measure less intrusive, less likely to be detrimental to the Claimant, which would not undermine the legitimate objective identified by the council and to which I have referred above. To extend the class of volunteers to include all those who, like the Claimant, provide some measure of care for others living in other accommodation would inevitably reduce the ability of the council to cater for those who benefit from the reasonable preferences provided for by the scheme. To extend the class of working households to include those who cannot work because of the type of disabilities suffered by the Claimant would inevitably conflict with the legitimate preference to be given to those in work. The wider the class the less valuable the benefit of being within it.
Even though this allocation scheme does, in my judgment, discriminate against those with the sort of disabilities of which the Claimant complains and against women, especially women who have unpaid caring responsibilities, in my judgment the Defendant has shown that it has adopted a scheme which was the least intrusive possible and which struck the right balance.
While the chilling effect of Ahmad on challenged to allocation policies has certainly lessened over the last few years, with a number of challenges being successful on not meeting statutory requirements on reasonable preference, and on associated discrimination, this claim was, it has to be said, on something of a more micro management element of the scheme, the ‘priority stars’.
The finding of indirect discrimination is surely right. But in the face of the terms of the Localism Act and the Govt guidance, is was always going to be a big ask for the court to find such an issue of relative priority within a particular priority band to be unjustified discrimination.