TW & Ors, R (on the application of) v London Borough of Hillingdon & Anor

A residence requirement in a social-housing allocation scheme must be justified by evidence addressing its discriminatory impact on affected racial groups. A lengthy requirement is especially likely to disadvantage Irish Travellers and cannot be justified merely by general policy aims or standard safety valves where the authority has not assessed that impact or considered less intrusive alternatives. The court must defer to allocation-policy choices only where the decision-maker has actually undertaken the necessary proportionality balance. A narrowly focused working-household uplift may nevertheless be justified when considered alongside the scheme as a whole. A local authority must also have regard to the need to safeguard and promote children’s welfare, including potential educational disruption.

The claimants, who were Irish Travellers living in temporary accommodation, challenged Hillingdon’s social-housing allocation scheme. The challenge concerned a ten-year continuous-residence qualification, an additional residence-based preference, and an additional preference for low-income working households.

They alleged indirect discrimination under Equality Act 2010 and breach of the duty under section 11(2) of the Children Act 2004. The central questions were whether the impugned provisions were proportionate means of achieving legitimate aims and whether the Council had properly considered children’s welfare when formulating and maintaining them.

1. Residence provisions. The ten-year residence qualification and residence uplift were unlawful. The ten-year period was rationally connected to the aim of rewarding long-term attachment to the borough, but the Council’s evidence did not show that it had assessed the extent of the disadvantage to Irish Travellers, considered whether that disadvantage was justified, or examined whether a shorter period would undermine its objectives. The equality assessments considered broad BME and white categories, but not Irish Travellers. The available safety valves did not demonstrate that the discriminatory impact had been addressed. Deference was therefore inappropriate.
2. Working-household uplift. The challenge to the working-household uplift failed. Although less intrusive alternatives existed, the measure was not manifestly without reasonable foundation. It was narrowly directed to households in housing need whose low income made access to low-cost or outright home ownership difficult, did not dominate the scheme, and operated alongside other provisions capable of assisting persons with disabilities or the protected characteristic of sex. A fair balance had been struck.
3. Children Act duty. The Council breached section 11(2) of the Children Act 2004 in formulating and maintaining the residence qualification and uplift. There were no contemporaneous records showing how the Council considered their potentially significant impact on Irish Traveller children. The Council had failed to consider the need to minimise educational disruption. The working-household uplift did not involve a breach of section 11(2).
4. The claim for judicial review was allowed in relation to the residence provisions and the section 11(2) breach. Declarations were appropriate. The challenge to the working-household uplift was dismissed, and counsel were invited to agree the precise terms of the declarations.