R (XC) v Southwark London Borough Council

The Claimant sought judicial review of the way Southwark Council's housing allocation scheme (adopted under Part VI of the Housing Act 1996, s.166A) was applied to her, alleging unlawful discrimination under the Equality Act 2010. The court accepted that the Claimant suffered a physical disability and mild Asperger syndrome and that two elements of the scheme (the "working household" and the "community contribution" priority stars) had the effect of indirectly discriminating against disabled people and women with caring responsibilities.

However, applying the four-stage proportionality test (as explained in Bank Mellat and Aster Communities), the judge held that the scheme pursued legitimate aims (creating sustainable communities and encouraging contribution), was rationally connected to those aims, and was a sufficiently proportionate and least intrusive means of achieving them when viewed in the context of the allocation scheme as a whole and its reserved discretionary "safety valve" for exceptional cases.

Accordingly the primary challenge failed and the claim was dismissed.

Background and parties: The Claimant (initials "XC"), a long-term council tenant who is physically disabled and has mild Asperger syndrome, applied for judicial review of Southwark London Borough Council's application of its "Choice Based Lettings and Housing Allocation Scheme". She complained about the refusal to move her out of Band 4 and about the operation of the scheme's priority star system (in particular the "working household" and "community contribution" stars), relying on the Equality Act 2010.

Nature of the application / relief sought: Permission to challenge the Council's banding decision and the design and operation of the priority star elements of the allocation scheme under the Equality Act 2010. Kerr J had given permission limited to three grounds: (1) unfavourable treatment arising from disability in the way the request to move was addressed and the refusal to move her out of Band 4; (2) indirect discrimination by operation of the priority star scheme against disabled persons who cannot work or volunteer; (3) indirect discrimination by operation of the priority star scheme against women with caring responsibilities.

Procedure and evidence: The Claimant relied on medical evidence (including a diagnosis of mild Asperger syndrome) and a history of complaints about noise and lift failures. The Council relied on its allocation scheme (November 2013), internal assessments, Ombudsman findings, and statistical material. The judge applied established rules for disputed factual evidence in judicial review (McVey) and accepted the Council's evidence on disputed factual matters in the absence of cross-examination.

Issues framed by the court: (i) whether Council correspondence and decisions amounted to unfavourable treatment arising from disability (s.15 EA 2010); (ii) whether the priority star elements indirectly discriminated against disabled persons (s.19 EA 2010); and (iii) whether they indirectly discriminated against women with caring responsibilities (s.19 EA 2010).

Court's reasoning and conclusion: On the first ground the judge concluded the correspondence and operational decisions complained of were not unfavourable treatment arising from disability but were a proportionate and considered response to persistent complaints (including the single-point-of-contact arrangements) and to the Ombudsman's findings. On the second and third grounds the judge accepted there was indirect discrimination because the two priority stars were more readily obtainable by people able to work or volunteer, and women and disabled people were disadvantaged in that respect. The critical question was justification under s.19(2). Applying the structured proportionality approach (Bank Mellat and Aster Communities), the judge found the policy pursued sufficiently important aims, was rationally connected to them, and was not more intrusive than necessary when the scheme is assessed as a whole and given the availability of an express discretionary "safety valve" for exceptional cases. The judge distinguished the Ealing decision on its facts. The claim was dismissed.

Contextual note: The judgment emphasises judicial restraint in interfering with local housing allocation policy except in clear or exceptional cases, while confirming the necessity of applying proportionality analysis to discrimination challenges under the Equality Act 2010.

The claim is dismissed. The court held that the Council's correspondence and operational responses did not amount to unfavourable treatment arising from the claimant's disability. Although the "working household" and "community contribution" priority stars produced indirect discrimination against disabled persons and women with caring responsibilities, the Council validly justified those elements as proportionate means of achieving legitimate aims of promoting sustainable communities and encouraging contribution, having regard to the scheme as a whole and the available discretionary "safety valve" for exceptional cases.