R (H and Others) v Ealing LBC

The court held that the Council's amendment to its housing allocations policy (the "Scheme") introducing a reserved 20% of lettings for "working households" and "model tenants" unlawfully indirectly discriminated against protected groups contrary to s19 of the Equality Act 2010 and was not justified. The Scheme was also held to discriminate contrary to Article 14 ECHR within the ambit of Article 8, and to breach the public sector equality duty in s149 of the Equality Act 2010 and the duty under s11 of the Children Act 2004. The judge applied the four-stage proportionality approach from Bank Mellat and concluded the Council had not shown the Scheme to be the least intrusive means of achieving its legitimate aims of incentivising employment and good tenancy behaviour.

Material subsidiary findings included that the Council's equality analysis and pilot data were inadequate, that the Council had not deployed any effective "safety valve" to protect those who cannot work for disability, age or caring reasons, and that other local authorities had adopted less intrusive variants. The court reserved detailed relief for handing down.

This is a judicial review challenge to a 2013 amendment of Ealing Council's housing allocations policy which reserved 20% of lettings for working households (employment of at least 24 hours per week for 12 of the last 18 months) and model tenants (secure council tenants with good conduct and no recent rent arrears). The claimants were families with care and disability constraints who argued the Scheme indirectly discriminated against women, disabled and older persons, breached Article 14 ECHR (within the ambit of Article 8), violated the public sector equality duty (PSED) under s149 Equality Act 2010, and failed the s11 Children Act 2004 duty.

Nature of the application: claimants sought declaratory and injunctive relief challenging lawfulness of the Scheme.

Issues framed:

• whether the working-household element indirectly discriminated under s19(2) Equality Act 2010 and, if so, whether it was proportionate;
• whether the Scheme engaged Article 8 and, if so, whether it gave rise to unlawful discrimination under Article 14;
• whether the Council complied with the PSED in s149(1) when adopting and continuing the Scheme;
• whether the Council discharged its s11 Children Act 2004 duty to have regard to the welfare of children.

Court's reasoning: The judge accepted the Scheme's legitimate aims (encouraging work and rewarding good tenancy behaviour) and that it was rationally connected to those aims. However, on the evidence the working-household element placed women, disabled and older persons at a particular disadvantage because they are less able to meet the qualifying work requirement and because a non-negligible proportion of certain house types were removed from the general pool. The Council's pilot/equality analysis was deficient (missing or unreliable figures, limited pilot, wrong work-hour description) and the Council had not shown the Scheme to be the least intrusive means of achieving its aim; other councils' policies showed ways to accommodate protected groups without defeating the aim. The Scheme therefore amounted to unlawful indirect discrimination under the Equality Act. Article 8 was held to be engaged (allocation of settled housing affects family and private life) and the ensuing Article 14 claim also succeeded. The Council also failed to discharge the PSED and its s11 Children Act 2004 duty because it had not given adequate, structured consideration to equality and children's welfare. The judge concluded the claim succeeded on these grounds and reserved consideration of specific remedies.

The claim succeeded. The court held that the working-household element of the Scheme unlawfully indirectly discriminated under s19 Equality Act 2010 because it put women, disabled persons and older people at a particular disadvantage and was not a proportionate means of achieving the Council's legitimate aims. The Scheme also breached Article 14 ECHR within the ambit of Article 8, failed the public sector equality duty in s149 Equality Act 2010 and breached the s11 Children Act 2004 duty. The Council's impact assessment and pilot evidence were inadequate and a less intrusive design was available; relief is to be considered at handing down.