HA, R (On the Application Of) v London Borough of Ealing

A housing allocation scheme may use a residence requirement to regulate qualification for social housing. It must, however, preserve the statutory requirement to give reasonable preference to the categories identified in section 166A(3) of the Housing Act 1996. A blanket residence condition which excludes such applicants from the housing register is unlawful unless the scheme provides appropriate general exceptions. An individual discretion to deal with exceptional cases does not cure that defect. A residence condition may also constitute indirect discrimination against women escaping domestic violence where no proportionate justification or assessment of its effects is shown. Authorities must further have regard to children’s welfare when formulating and applying their policies.

The claimant, a mother of five children who had left Hounslow because of domestic violence, challenged the defendant local housing authority’s revised housing allocations policy and its decision refusing her entry to the housing register. The policy required five years’ residence in the borough, subject to an exceptionality discretion. The claimant was owed the full homelessness duty under section 193 of the Housing Act 1996, but her application was rejected without consideration of her circumstances or the exceptionality provision.

The principal issues were whether the residence condition complied with the reasonable-preference duty in section 166A(3), whether it unlawfully discriminated against women fleeing domestic violence, whether the authority had complied with section 11 of the Children Act 2004, and whether the decision-maker had applied the policy lawfully.

1. The claim succeeded. The defendant’s Housing Allocation Policy and its decision refusing the claimant entry to the housing register were unlawful. The decision was quashed.
2. Section 160ZA of the Housing Act 1996 permits a local housing authority to determine classes of qualifying persons. A residence requirement is not unlawful in itself. However, section 166A(3) requires the allocation scheme to secure reasonable preference for specified categories, including persons owed the homelessness duty and those living in unsatisfactory housing conditions.
3. A residence requirement may not operate as an automatic exclusion of the whole class entitled to reasonable preference. The defendant’s policy contained no general exception for those categories. Its residual discretion for exceptional circumstances was directed to individual cases and could not substitute for a scheme which complied generally with section 166A(3). The policy was therefore unlawful.
4. The residence condition indirectly discriminated against women escaping domestic violence. Female victims had protected status for the purposes of article 14, and the policy fell within the ambit of article 8 because access to settled accommodation was sufficiently linked to home and family life. The defendant had not assessed the discriminatory effects of the policy or advanced a rational and proportionate justification.
5. The policy also breached sections 19 and 29 of the Equality Act 2010. The five-year condition was a provision, criterion or practice causing a particular disadvantage to women, and sufficient justification had not been established.
6. Section 11(2) of the Children Act 2004 required the authority to make arrangements ensuring that its housing functions were discharged with regard to safeguarding and promoting children’s welfare. That duty applied both to policy formulation and to the policy’s application in an individual case. The evidence did not show that the duty had been discharged.
7. Independently, the decision was unlawful because the authority had failed to consider whether the claimant’s circumstances engaged the exceptionality provision. The rejection letter and evidence showed automatic application of the residence condition without individual consideration.