H & Ors, R (On the Application Of) v Ealing London Borough Council

A housing-allocation scheme reserving 20% of lettings for working households and qualifying existing tenants may indirectly discriminate where protected groups are materially less likely to qualify. Its effects must be assessed by reference to the impugned provision, although the wider policy may be relevant to justification. A scheme will fail proportionality review where less intrusive safeguards, such as exceptions for people unable to work because of disability, age or caring responsibilities, are reasonably available. Public authorities must also make a structured, evidence-based assessment of equality impacts and have regard to children’s welfare when adopting and maintaining such a scheme.

The claimants challenged Ealing’s housing allocations scheme, introduced in 2013, which reserved 20% of available lettings for working households and compliant existing tenants described as model tenants. They alleged indirect discrimination under the Equality Act 2010, discrimination contrary to Article 14 of the Convention, breach of the public sector equality duty, and breach of the duty concerning children’s welfare under the Children Act 2004.

The central issues were whether the scheme caused group disadvantage, whether it was justified, whether the Council had discharged its equality duty, and whether it had properly considered the welfare of affected children.

1. Indirect discrimination. The working-household element was a provision, criterion or practice for the purposes of section 19 of the Equality Act 2010. Women, disabled people and older people were less likely to satisfy the requirement to work for at least 24 hours per week. The scheme could allow applicants in lower priority bands to obtain reserved properties ahead of applicants in higher bands. The Council’s evidence did not displace the resulting group disadvantage. The assessment had to focus on the impugned scheme, rather than treating advantages elsewhere in the allocations policy as automatically cancelling its effect.
2. Justification. Encouraging work and good tenancy behaviour were legitimate aims, and the scheme was rationally connected to them. It was not, however, the least intrusive means of achieving those aims. The Council could have adopted an exceptionality provision or recognised other forms of community contribution for people unable to work because of disability, age or caring responsibilities. The scheme therefore failed the four-stage proportionality test stated in [2013] UKSC 39, and amounted to unlawful indirect discrimination.
3. Article 14. The housing policy was within the ambit of Article 8 because access to settled accommodation could directly promote or preserve family life. The scheme also discriminated against non-Council tenants through the model-tenant requirement, and against children of single-parent carers. The Council failed to justify the discriminatory treatment. The Article 14 claim succeeded.
4. Equality and children’s welfare duties. The Council had not discharged the public sector equality duty under section 149 of the Equality Act 2010. Its analysis did not properly examine the specific effects of the working-household element, relied on incomplete or inaccurate evidence, and failed to engage with relevant comparative figures. It also breached section 11(2) of the Children Act 2004 because there had been no real consideration of the welfare of children of single-parent carers.
5. The finding required the Council to amend the scheme so that it complied with the law, if it chose to continue it. Consequential questions of relief were reserved.

First-instance judicial review decision. The judgment records no appeal or earlier decision in the same proceedings.