R(H)

The Court of Appeal considered judicial review challenges to Ealing Council’s housing allocation policy insofar as it reserved 20% of lettings for working households and model tenants. The principal issues were whether the working household priority scheme (WHPS) and the model tenant priority scheme (MTPS) amounted to indirect or direct discrimination under the Equality Act 2010 s.19 and s.29 and Article 14 taken with Article 8 ECHR, and whether the Council had failed to comply with the public sector equality duty under EA 2010 s.149 and the duties under the Children Act 2004 s.11.

The court concluded that the WHPS is a provision, criterion or practice for the purposes of s.19 and that, because women, older people and many disabled people are less likely to meet the working-hours test, the WHPS gives rise to indirect discrimination. The court held, however, that the judge below had erred in his assessment of justification: matters relied upon by the Council (so called safety valves and the wider allocation scheme) are relevant to justification rather than to the existence of a PCP and the judge was not entitled to reject the Council’s proportionality case by reference to the policies of other local authorities. The Court allowed the appeal against the High Court’s findings that the schemes were unjustified under EA 2010 s.19 and Article 14 read with Article 8 and quashed the order that the two schemes be set aside. The Court nevertheless upheld, in large part, the High Court’s finding that the Council had breached the public sector equality duty; the court found no breach of the Children Act s.11 on the material before it.

Background and procedural posture:

• This is an appeal from the Administrative Court (HHJ Waksman QC) which had allowed judicial review claims and quashed two priority schemes contained in Ealing Council’s housing allocations policy introduced in October 2013. The High Court had held that the working household priority scheme (WHPS) indirectly discriminated against women, older people and disabled people contrary to EA 2010 s.19 and that both schemes engaged Article 14 combined with Article 8 ECHR; the High Court also found breaches of the public sector equality duty (EA 2010 s.149) and the Children Act 2004 s.11. The Council appealed and the Equality and Human Rights Commission intervened.

Nature of the claim and relief sought: The claimants sought declarations and quashing of the parts of the Housing Policy which allocated 20% of lettings (15% WHPS, 5% MTPS) to working households and model tenants and relief for alleged breaches of the Equality Act 2010 (s.19, s.29, s.149), Article 14 in conjunction with Article 8 ECHR, and the Children Act 2004 s.11.

Issues framed by the Court:

1. Whether the WHPS and MTPS amount to PCPs and give rise to indirect or direct discrimination under EA 2010 s.19 and s.29;
2. Whether the schemes fell within the ambit of Article 8 such that Article 14 applied and, if so, whether any differential treatment was justified; and
3. Whether the Council complied with the PSED (EA 2010 s.149) and its duties under CA 2004 s.11.

Reasoning and conclusions:

• The Court accepted that the WHPS is a PCP and that, on its face, it places women, older people and many disabled people at a particular disadvantage because they are less likely to meet the qualifying work requirement. The existence of indirect discrimination therefore follows from the statutory test in s.19(2)(a)-(c).
• The court explained that evidence about the overall allocation scheme and various "safety valves" are properly considered on justification under s.19(2)(d) rather than on the preliminary question whether a PCP exists. Cases relied on by the Council which looked at measures "in the round" were distinguished where the alleged mitigating measures formed part of the same PCP rather than being separate considerations relevant to justification.
• On justification the Court found that the High Court had erred in concluding that the schemes were unjustified. The judge had placed undue weight on different policies adopted by other local authorities and had not carried out the statutory balancing by reference to the legitimate aims, rational connection and proportionality in light of the entirety of Ealing’s allocation arrangements and the democratic policy choices of the local authority. The Court therefore allowed the appeal against the findings that the schemes were unjustified and overturned the order quashing them.
• As to Article 14 read with Article 8, the Court considered the MTPS fell outside the ambit of Article 8 but that the WHPS could affect family life for some households and so fall within Article 8 for Article 14 purposes. On justification under Article 14 the Court again found error in the High Court’s approach and overturned those parts of the judgment (subject to the above distinction between MTPS and WHPS).
• The Court upheld the High Court’s conclusion that the Council had failed adequately to discharge the PSED in relation to the WHPS and that earlier equality impact assessment work was inadequate. The Court nonetheless declined to quash the schemes immediately because the Council’s decision-making at the relevant senior level showed awareness of the issues and a wider review of allocations was in hand.
• The Court allowed the appeal on the Children Act s.11 ground and concluded there was not a sufficient basis to find breach of the s.11 duty on the material before the court.

Wider context noted: The Court emphasised the need to distinguish the existence of a PCP from the justification exercise, the appropriate margin of appreciation for policy choices by democratically accountable local authorities, and the proper role of courts in reviewing such socio-economic allocation decisions.

Appeal allowed in part. The Court held that the WHPS is a provision, criterion or practice which gives rise to indirect discrimination under EA 2010 s.19 because women, older people and disabled people are less likely to meet the working-hours criterion; however the High Court erred in its justification analysis and in relying on other local authorities’ schemes to find the WHPS and MTPS unjustified under EA 2010 s.19(2)(d) and Article 14 read with Article 8. The Court therefore allowed the appeal against the High Court’s declarations that the schemes were unjustified and quashed, but upheld that the Council had in large part failed to comply with its public sector equality duty under s.149; the Court allowed the appeal on the Children Act s.11 ground and would not order immediate quashing of the schemes given an ongoing policy review.

Appeal from the Administrative Court (HHJ Waksman QC) judgment dated 18 April 2016 (see [2016] EWHC 841 (Admin); [2016] P.T.S.R. 1546) in which the High Court quashed the WHPS and MTPS and declared breaches of EA 2010 s.19/s.149, Article 14 read with Article 8, and CA 2004 s.11. Permission to appeal was subsequently granted by Briggs LJ (11 January 2017). The Court of Appeal heard the appeal on 20–21 June 2017 with the Equality and Human Rights Commission granted permission to intervene (22 May 2017).