Ward & Ors, R (on the application of) v The London Borough of Hillingdon & Ors (2019) EWCA Civ 692

Regular readers will remember the judicial reviews of Hillingdon’s allocation policy requirement for a 10 year residence period (those without 10 years but with ‘reasonable preference’ being placed in Band D), with the rather odd outcomes that the policy did indirectly discriminate against Travellers (Ward – our note ), but was not discriminatory against refugees (Gullu – our note). Now both decisions ended up as joined appeals in the Court of Appeal.

The Court of Appeal reviewed Hillingdon’s Equality Impact Assessments, both when introducing the policy in 2013, and when amending it in 2016 (this latter being after Mr Gullu had begun his judicial review). On neither occasion was there any consideration of Travellers or refugees (or indeed Non UK nationals).

The Court of Appeal noted that in Ward, Hillingdon had conceded that para 2.2.4 of the Allocation Policy amounted to indirect discrimination. In Gullu, the same concession had been offered, but Mostyn J refused to accept it. The  Court of Appeal found that Hillingdon had been right to make the concession.

Mostyn J had taken the wrong approach to indirect discrimination by using an individual comparator:

Mostyn J’s first error was to compare Mr Gullu with an individual analogue (“a voluntary migrant from Yorkshire or France”). If the case were one of direct discrimination, that would be the correct approach. But in a case of indirect discrimination, it is not. In the case of indirect discrimination, the correct comparison is between groups rather than individuals.

For indirect discrimination, all members of the group should be considered and the appropriate group comparison made.

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? Mostyn J’s second error was to select as an analogue a person who could not satisfy the 10-year residence requirement (because they were a recently arrived voluntary migrant). Compounding this error was his concentration on some only of the comparator group. What he ought to have done was to have considered the comparator group (UK nationals) as a whole. The fact that some members of the comparator group are also disadvantaged by the PCP does not negate indirect discrimination, if a higher proportion of the protected group suffer that disadvantage.

If, then, one asks: does a 10-year residence requirement disadvantage non-UK nationals more than UK nationals, the answer must be “yes”.

Mostyn J was therefore in error.

The Public Sector Equality Duty applied in formulating the policy. However, while a duty to make inquiries as to groups affected did not automatically extend to all conceivable groups, without some indication that any such group might be affected, once the point had been raised in respect of a group, there was a duty to consider it properly. Hillingdon’s 2013 impact assessment was not in breach of the PSED, but as Mr Gullu had raised the issue of refugees and non UK citizens by the time of the 2016 re-assessment, that assessment was in breach of the PSED in failing to consider that group.

As the policy was indirectly discriminatory in both cases, the key question was justification.

Two questions arose.

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.

The difficulty for Hillingdon in justifying the policy was that all the material on which such a justification could be based was the 2013 and 2016 equality assessments.

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.

There were the ‘safety valves’ of exceptional hardship, or direct offers outside the Scheme, but there was no evidence that they actually operated to reduce the disadvantage to the two groups affected here. Mostyn J in Gullu was not correct to have accepted that they did.

On overall justification, Mostyn J was not correct to find that the discrimination was justified.

There are a number of flaws in this reasoning. First, Mostyn J’s starting point was the individual analogue whom he had discussed in considering whether there was discrimination at all. For the reasons I have given, that was wrong. Second, he was wrong to say that the alternative ways in or up “entirely negate” the discrimination. For the reasons I have given, they do not. Third, he was wrong to say that giving preference to refugees would arguably amount to unlawful discrimination. Since refugees as such do not share a protected characteristic for the purposes of the Equality Act 2010, it would not. Fourth, Hillingdon led no evidence about the scale of the disadvantage that would be suffered by the protected group of non-UK nationals. It follows that an attempt to “balance” the severity of the effect against the importance of the objective is an impossible task. Put simply, there is nothing to put on one side of the scale. Moreover, Hillingdon did not explain how much (if at all) the relaxation of the 10-year residence qualification would compromise the objective of the scheme to reward long term residents of the borough. In this connection, it is relevant to note that the statutory guidance recommends a residence qualification period of at least two years, rather than the 10 that Hillingdon has chosen. Although it is fair to say that the officers’ first assessment did say that alternative lengths of residence qualification could be considered, there is no evidence that they actually were. Fifth, it is not for the court to “search around” for a justification that the policy maker has not advanced: R (Elias) v Secretary of State for Defence at (131). Sixth, although the “manifestly without reasonable foundation” test applies to the first and second stages (and possibly to the third), it does not apply to the fourth: R (A) v Secretary of State for Health (2017) UKSC 41, (2017) 1 WLR 2492 at (33).

Hillingdon had not really attempted to justify the discrimination, in the sense of acknowledging it and explaining why it was justified. That exercise had not been carried out.

On the Children Act 2004 issue in Ward, Supperstone J was not correct to find a breach of s.11(2). The Judge had considered what were matters of individual decision-making but extended those to the formulation of policy.

On both appeals, the Court of Appeal made “a declaration that the impugned provisions of the policy constitute indirect discrimination against Irish Travellers and non-UK nationals which is unlawful unless justified; and that Hillingdon has not yet shown such justification.”

(As a footnote, we have already seen Hillingdon fail in a further attempt to justify the discrimination in Ward – our note here).