R (HA) v Ealing LBC

The claimant sought judicial review of the defendant council's October 2013 Housing Allocations Policy and a decision of 8 December 2014 refusing her entry to the housing register. The court held that the council's five‑year residency qualification operated as an absolute exclusion of persons who fall within the statutory "reasonable preference" categories in s.166A(3) of the Housing Act 1996 and was therefore unlawful. The policy also amounted to unjustified indirect discrimination against women fleeing domestic violence contrary to Article 14 ECHR (read with Article 8) and s.29 of the Equality Act 2010. In addition, the council had failed to make or act upon arrangements under s.11 of the Children Act 2004 to safeguard and promote the welfare of children when formulating and applying the policy, and it unlawfully failed to consider the exceptionality/discretionary provision in the claimant's case. The policy and the individual decision were quashed.

Background and parties

The claimant, a mother of five children who had fled domestic violence and had been accepted as unintentionally homeless under s.193 of the Housing Act 1996, applied online on 4 December 2014 to join the London Borough of Ealing's housing register. By letter dated 8 December 2014 the council removed her application on the basis that households must have been resident in the borough for five years to be eligible for the register. The claimant challenged the policy and that decision by way of judicial review. Permission was granted and an expedited hearing took place; the claimant was also permitted to adduce a witness statement from Women’s Aid.

Relief sought

• Quashing of the allocations policy and the decision to remove the claimant's application from the register; and associated relief arising from unlawful discrimination and failures to have regard to children's welfare.

Issues framed by the court

1. Whether the residency qualification was incompatible with the statutory allocation scheme in Part VI of the Housing Act 1996, in particular the requirement in s.166A(3) to give reasonable preference to statutorily defined groups (Heading A).
2. Whether the residency requirement indirectly discriminated against women fleeing domestic violence contrary to Article 14 ECHR (in the ambit of Article 8) and s.29 Equality Act 2010 (Headings B(1) and B(2)).
3. Whether the council breached s.11 of the Children Act 2004 by failing to make arrangements to safeguard and promote children's welfare when framing and applying the policy (Heading C).
4. Whether the council unlawfully failed to apply or consider its exceptionality/discretionary provision in the claimant's individual case (Heading D).

Court's reasoning and conclusions

The court analysed the statutory scheme (sections 159, 160ZA, 166A and 169 of the Housing Act 1996) and relevant statutory guidance. It accepted that local authorities may adopt residency criteria but concluded that a qualification which operates to exclude entire sub‑groups who fall within s.166A(3)'s reasonable preference categories cannot be reconciled with the statutory duty to frame schemes to secure reasonable preference. The judge relied on and applied authorities (including R. (Jakimaviciute) v Hammersmith & Fulham and R. (Alemi) v Westminster) to the effect that qualification criteria must not preclude those entitled to reasonable preference.

The court further held that the five‑year residency rule had a discriminatory impact on women fleeing domestic violence, who are disproportionately female; there was no adequate assessment or justification of that discriminatory effect and the council could not rely on the residual exceptional discretion to save the policy as a class‑based measure. The policy therefore breached Article 14 (parasite on Article 8) and s.29 of the Equality Act 2010.

On s.11 Children Act 2004 the court found no evidence that the council had made arrangements to ensure its housing functions were discharged with regard to safeguarding and promoting the welfare of children, either in formulating the policy or in applying it to the claimant's family.

Finally, even if the policy were lawful in principle, the council had not considered the claimant's individual circumstances or the policy's exceptionality discretion and so the individual decision was unlawful. For these reasons the allocations policy and the decision in the claimant's case were quashed.

The claim succeeded. The court quashed the defendant's Housing Allocations Policy and the decision refusing the claimant entry to the housing register. The rationale was that the five‑year residency qualification unlawfully excluded people who fall within the reasonable preference categories in s.166A(3) of the Housing Act 1996, amounted to unjustified indirect discrimination against women fleeing domestic violence contrary to Article 14 ECHR and s.29 Equality Act 2010, breached s.11 of the Children Act 2004 by failing to make arrangements to safeguard child welfare, and the defendant failed to apply its exceptionality discretion to the claimant's case.