TW, SW, and EM, R (On the Application Of) v London Borough Of Hillingdon (2018) EWHC 1791
This was a judicial review of Hillingdon’s allocation scheme and in particular, the thresholds for eligibility for inclusion on the housing list set by Hillingdon.
The challenges were to these parts of the policy:
(1) in para 2.2.4, 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) in para 14.3, additional preference for such households who are in Bands C and B of the housing register (“the residence uplift”), and
(3) in para 14.4, additional preference for those in Bands C and B who are working households on low income (“the working household uplift”).
The claimants are of Irish Traveller descent, living in temporary accommodation in Hillingdon. One is a single parent, the other a disabled person who cannot work, and who is the full time carer for his three adult disabled children.
The grounds of challenge were:
1.That both the residence qualification and the residence uplift discriminate indirectly and unlawfully under ss.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.
2. That the working household uplift discriminates indirectly and unlawfully under the same statutory provisions against persons with the protected characteristics of “disability” and “sex”, the former applying to EM’s household and the latter to TW as a single parent.
3. In formulating the three provisions under challenge the Defendant acted in breach of its obligations under s.11(2) of the Children Act 2004 (“CA”).
On grounds 1 and 2, para 2.2.4 of the allocation policy stated:
“Households who have not been continuously living in the borough for at least 10 years and will not qualify to join the housing register
Applicants will need to demonstrate a local connection with Hillingdon. Local connection within the terms of this scheme will normally mean that an applicant has lived in Hillingdon, through their own choice, for a minimum of 10 years up to and including the date of their application, or the date on which a decision is made on their application, whichever is later.
For purposes of continuous residence, children spending time away from home for education due to periods of study such as at university and people who have moved away up to 3 times due to the requirements of their job will be disregarded. Secure, introductory or flexible tenants of Hillingdon Council and care leavers housed outside the borough will be considered as having a local connection with Hillingdon.
People will also be considered as having a local connection with Hillingdon when they are placed in the borough of Hillingdon in temporary accommodation in accordance with sections 190(2), 193(2), 195(2) or who are occupying accommodation secured by any local authority under section 192(3).”
On banding for priority:
“5.1 Priority Banding
Housing need is determined by assessing the current housing circumstances of applicants. A priority ‘band’ is then allocated according to the urgency of the housing need. There are three priority bands as follows
Band A – This is the highest priority band and is only awarded to households with an emergency and very severe housing need.
Band B – This is the second highest band and is awarded to households with an urgent need to move.
Band C – This is the third band, and the lowest band awarded to households with an identified housing need.
If following an assessment it is determined that an applicant has no housing need, they cannot join the housing register…”
And on homeless households:
“The council will maintain the protection provided by the statutory reasonable preference criteria in order to ensure that priority for social housing goes to those in the greatest need…
12.1 Homeless household
This applies to people who are homeless within the meaning of Part 7 of the 1996 Housing Act (amended by the Homelessness Act 2002 and the Localism Act 2011).
…
Where the Council has been able to prevent homelessness and the main homelessness duty has been accepted, applicants will be placed in one of the following bands:
Band A – in temporary accommodation but the landlord wants the property back AND the council cannot find alternative suitable temporary accommodation. Where an applicant fails to successfully bid within 6 months, a direct offer of suitable accommodation will be made. If the property is refused the Council will discharge its duty under Part VII of the Housing Act and withdraw any temporary accommodation provided.
Band B – In Bed and Breakfast, council hostel accommodation or women’s refuge.
Band C – In other forms of temporary accommodation.
Where the Council has been unable to prevent homelessness and the main homelessness duty has been accepted, applicants with less than 10 years continuous residence in the borough will be placed in Band D.
On working households
14.4 Working households
Additional priority will be given to households who are in housing need and are working but are on a low income which makes it difficult to access low cost or outright home ownership. This will encourage people who can, to work and raise levels of aspiration and ambition.
This policy applies to households where:
At least one adult household member is in employment.
The employment should be a permanent contract, self-employment or part time for a minimum of 24 hours per week.
The worker should have been in employment for 9 out of the last 12 monthevidence s.
Band A – where the household’s housing need is ‘Band B’ + working.
Band B – where the household’s housing need is ‘Band C’ + working”
On ground 1, given the potential indirect discrimination, the test was whether the 10 year requirement was proportionate.
Hillingdon successfully argued that the measure was rationally connected to the councils aims in rewarding a long term connection to the borough, but on whether a less intrusive measure could have been adopted, and whether the severity of the measure’s effect outweighed the importance of the objective, Hillingdon came to grief.
Hillingdon’s own Equalities Impact Report noted that there would be a negative impact on ‘mainly BME residents’ from the 10 year residence plan.
On top of this was putting statutorily homeless into ‘band D’.
Hillingdon’s evidence was
“I understand that Cabinet considered the report and the Impact Assessment and approved the 10-year residence requirement as providing the most appropriate balance between the needs of those on the Housing Register and the aims of the policy, namely to support stable communities within the Borough and to reward those residents who could demonstrate a stronger attachment to Hillingdon. The Scheme allows for a number of exceptions to the 10-year residence requirement in specified situations and in cases where hardship would result, which was felt to provide protection to those applicants who would otherwise be disproportionately impacted by the changes.”
And
The documents I have produced show the following key policy aims of the Scheme: (1) to ‘provide a fair and transparent system by which people are prioritised for social housing’; (2) to ‘help those most in housing need’; (3) to ‘reward residents with a long-term attachment to the Borough’; (4) to ‘encourage residents to access employment and training’; (5) to ‘make best use of Hillingdon’s housing stock’, and (6) to ‘promote the development of sustainable mixed communities’. For present purposes, I draw attention to the third and fourth of those aims which were reflected in the residence and working household provisions of the Scheme.
Cabinet approved the current Social Housing Allocation Scheme on 15 December 2016.”
And
Mr Rutledge contends that the rationale for placing the statutorily homeless in the lowest band (unless they satisfy the residence qualification) is that they enjoy certain advantages over those applying for re-housing from elsewhere. In particular they have the right to be provided with suitable temporary accommodation whilst they wait an allocation and are eligible also for a private rented sector offer (“PRSO”) in discharge of the full housing duty. A PRSO guarantees suitable accommodation for a minimum period of 12 months with a guarantee that, if the tenant subsequently becomes unintentionally homeless from it, he will still be owed the full homeless duty irrespective of whether he still has a priority need.
This is, it has to be said, rubbish. Those are the Part VII duties, not the Part VI allocation points.
The Court was not impressed.
The real problem for the Council in attempting to justify the ten years’ residence qualification and uplift is the paucity and inadequacy of their evidence.
The only consideration given to the impact of the residence requirement on “race” was in relation to BME or “white” residents. However the adverse impacts on racial groups defined by “colour” were not the only ones that required consideration. I agree with Mr Wise and Mr Squires that a residence requirement, especially one as long as ten years, is almost certain to have a significant and adverse impact on Irish Travellers, yet the position of Irish Travellers does not appear to have been considered at all when the Council conducted their equality impact assessment. No consideration has therefore been given as to whether the Council has struck the correct balance between disadvantage to Irish Travellers and the aims of the residence requirement.
Whether a residence requirement is lawful will depend on whether it can be justified. A residence requirement, especially one as long as ten years, is highly likely to have a significant and adverse impact on Irish Travellers. Irish Travellers are significantly less likely than members of other racial grounds to have resided in a particular location in the UK continuously for at least ten years. However there is no evidence that the Council sought to assess the extent of the disadvantage on Irish Travellers or considered whether it was justified or what might be done to reduce it. Further, there is no evidence from the Council to show that a shorter period than ten years would undermine their stated objectives.
The claim succeeded on ground 1.
On ground 2 – the working household uplift
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).
On ground 3 – the Children Act 2004 argument – this was, to some extent, parasitic on grounds 1 and 2.
There was no evidence at all that Childrens Services had made any input to the 10 year residency issue:
The residency criterion has, in my view, potentially a significant impact on the welfare of children of Irish Travellers. However despite the Council’s Children’s Services engagement there are no records or documents evidencing any action they took or discussions they had to promote or safeguard the welfare of children when the residence qualification was introduced or under further consideration in 2013 or 2016. That being so, I agree with Mr Wise that the Council is not in a position to demonstrate, by reference to written contemporaneous records, the process of reasoning by which they reached their decision in relation to the impact of the residency qualification and uplift on the Claimants’ children. (See R (E) v Islington LBC (2018) PTSR 349, per Mr Ben Emmerson QC sitting as a deputy High Court judge at para 114; and R (J and L) v Hillingdon LBC [2017] EWHC 3411 (Admin), per Nicklin J at para 47, as to judicial scrutiny requiring an objective and evidence-based analysis of the decision making process).
Moreover
It seems to me that the potential impact of the residency qualification on the education of children of Irish Travellers at the very least required the Council, pursuant to their s.11 duty, to give consideration “to the need to minimise educational disruption” (R (E) v Islington LBC at para 114; and also see the report “Between the Cracks” referred to by Ms Neate at para 13 of her witness statement which shows a correlation between changes of school and lowered educational attainment). The Council did not engage with this issue at all.
I am led to the conclusion that the Council breached their duty under s.11(2) in relation to the imposition and maintenance of the residential qualification and uplift.
However, there was no breach in relation to the working household uplift, in relation to children whose parents are persons with the protected characteristics of sex and disability.
Held
On the basis of my findings, the appropriate relief is declarations to the effect that the residency qualification and uplift are unlawful, and that the Council acted in breach of their obligations under s.11(2) CA in formulating and maintaining those provisions.
Comment
While this finding was on the basis of discrimination (and lack of consideration) in relation to Irish Travellers, Hillingdon’s own impact assessment sets out a disproportionate impact on BME residents as well.
The mere fact that the Council had approved the policy was not enough – quite rightly – to justify it. There was no evidence that either the council had seriously considered the disproportionate impact, or that Childrens Services (or indeed, the Homelessness unit) had had real input into the policy, beyond just being told what it was. All the council relied on in this regard were the impact assessments that actually confirmed the lack of consideration.
We’ve been here before – many councils seem to think that post Localism Act and R (Ahmad) v Newham LBC (2009) UKHL 14 that they can do what they like on selection for the housing list and on priority. But basic principle of public law and the Equality Act 2010 apply. So, they can’t, not without proper consideration and justification.
Just to point out that this case bears a lot of resemblance to a case we ran about refusal of a pitch on a Travellers’ site – see report on VC v North Somerset on the CLP website at: http://www.communitylawpartnership.co.uk/news/r-vc-v-north-somerset-council-equality-and-human-rights-commission-intervening-co38012015
Chris CLP