XC, R (on the application of) v London Borough of Southwark

A housing allocation authority is subject to the Equality Act 2010 when designing and operating its allocation scheme. A priority awarded for paid work or volunteering may indirectly discriminate against disabled people and women, particularly women with unpaid caring responsibilities, because those groups may be less able to satisfy the criteria.

Discrimination may nevertheless be justified where the scheme pursues legitimate housing-policy aims, the priority criteria are rationally connected to those aims, and the scheme is the least intrusive means available which does not unacceptably compromise them. The court must assess the scheme as a whole at the justification stage and respect the local authority’s expertise in balancing competing housing needs.

The claimant, a disabled woman and Southwark tenant, sought judicial review of the application of Southwark’s housing allocation scheme. She challenged her allocation to Band 4 and the scheme’s priority stars for working households and community contribution.

She alleged discrimination arising from disability, indirect discrimination against disabled people, and indirect discrimination against women whose caring responsibilities limited their ability to work or volunteer. The central issues were whether the scheme caused unlawful indirect discrimination and, if so, whether that discrimination was a proportionate means of achieving a legitimate aim.

1. Ground 1. The response to the claimant’s complaints and housing request was not unfavourable treatment arising from disability. The pre-action response was commentary rather than a decision, and the restrictions on dealing with persistent, unsubstantiated complaints were considered and proportionate. The claim under section 15 therefore failed.
2. Application of the Equality Act. The authority was providing a service to the public and, in any event, exercising a public function. Section 29 applied to the administration of the allocation scheme. The claimant’s physical and mild psychiatric conditions constituted disabilities within section 6.
3. Indirect discrimination. The working-household and community-contribution priority stars placed disabled people and women at a particular disadvantage. The stars were cumulative, and the existence of other provisions favouring disabled applicants or women did not remove that disadvantage. The limited statistics relied on by the authority did not displace that conclusion.
4. Justification. The court applied the structured four-stage proportionality test stated in Bank Mellat v HM Treasury (No 2) [2014] AC 700: legitimate aim, rational connection, least intrusive measure, and fair balance. The first two stages were satisfied. The aims of creating sustainable and balanced communities and encouraging work and voluntary contribution were legitimate, and the priority stars were rationally connected to them.
5. At the least-intrusive-means and fair-balance stages, the allocation scheme had to be considered as a whole. The scheme responded to the statutory framework, gave preference to urgent housing needs, and included a discretion to waive provisions in exceptional and limited circumstances. Removing or substantially widening the working and volunteering criteria would weaken the scheme’s legitimate preferences. The authority therefore established justification.
6. The claim was dismissed. The court also applied the ordinary judicial-review approach to disputed evidence, accepting the defendant’s evidence where there had been no cross-examination and the documents did not demonstrate that it was incorrect.