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

When assessing indirect discrimination under section 19 of the Equality Act 2010, the court examines the particular provision, criterion or practice alleged to cause disadvantage. Benefits or safeguards elsewhere in a wider policy ordinarily concern justification, rather than whether that disadvantage exists.

A discriminatory housing-allocation measure may nevertheless be justified after considering its legitimate aim, limited reach, priority safeguards and operation within the allocation policy as a whole. Courts must respect the expertise and democratic responsibility of housing authorities while rigorously reviewing proportionality.

The public sector equality duty requires a conscious, rigorous and open-minded assessment. It prescribes consideration, not a particular outcome or weight. A breach does not invariably require the policy to be quashed, particularly where an informed comprehensive review is already under way.

Ealing reserved 15% of its available lettings for qualifying working households and 5% for model Council tenants. The claimant families included women, elderly people and disabled people whom Ealing owed housing duties. They alleged indirect discrimination, Convention discrimination and breaches of the public sector equality duty and the duty to safeguard and promote children’s welfare.

The Administrative Court, in [2016] EWHC 841 (Admin), upheld the claims and quashed both priority schemes. Ealing appealed.

The central questions were whether the working-household scheme caused unjustified indirect discrimination; whether either scheme violated article 14 read with article 8; and whether Ealing had complied with section 149 of the Equality Act 2010 and section 11 of the Children Act 2004.

1. Appeal allowed in part. The working-household scheme was a provision, criterion or practice which particularly disadvantaged women, disabled people and elderly people because members of those groups were less likely to work. Once the relevant provision, criterion or practice had been identified, its discriminatory effect had to be examined directly. Priority banding, quotas and other protections elsewhere in the housing policy were relevant to justification, not to the existence of disadvantage under section 19(2)(a)–(c) of the Equality Act 2010.

2. The Administrative Court was not entitled to reject justification. It had relied on materially different policies operated by three other authorities and had not adequately considered that the scheme covered only 15% of Ealing’s stock. It also failed to weigh priority banding, protected-group quotas and the discretion to place applicants in higher bands. The court should not prescribe the precise design of a housing-allocation policy merely because another possible scheme appears less intrusive. The finding of unjustified indirect discrimination was therefore set aside.

3. The model-tenant scheme did not fall within the ambit of article 8 because it merely facilitated transfers between Council properties. The Master of the Rolls considered the working-household scheme within article 8’s ambit for families lacking secure accommodation. Davis and Underhill LJJ provisionally disagreed but did not decide the point because all three judges agreed that the discrimination was justified. The Convention findings were accordingly set aside.

4. Ealing’s initial equality impact assessments were inadequate. The later witness statement did not cure the failure concerning the working-household scheme because it omitted material analysis of disability, the risk of non-working disabled applicants being overtaken and the distribution of larger homes. No breach was established concerning the model-tenant scheme. The appeal against the public sector equality duty declaration was therefore dismissed only in relation to the working-household scheme.

5. No quashing order was appropriate for the equality-duty breach. The responsible officer appreciated the discrimination issues and a comprehensive review was pending. The children’s welfare finding was also reversed: the evidence showed conscious consideration of section 11(2), children’s need for suitable long-term housing and the scheme’s effect on female-led households.

1. Court of Appeal (Civil Division): By [2017] EWCA Civ 1127 , allowed Ealing’s appeal against the findings of unjustified discrimination and breach of section 11 of the Children Act 2004. It upheld the section 149 breach only in relation to the working-household scheme and set aside the orders quashing both schemes.

2. Administrative Court: By [2016] EWHC 841 (Admin) , allowed the judicial review, declared both priority schemes unlawful on the relevant grounds and quashed them.