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

The claim concerned challenges to Hillingdon Council’s Social Housing Allocation Policy (December 2016) arising from: (1) a 10-year continuous residence qualification excluding many applicants from the housing register (para 2.2.4); (2) an accompanying 10-year residence "uplift" giving additional priority to long‑term residents (para 14.3); and (3) a "working household uplift" giving extra priority to working low‑income households (para 14.4).

The court held that the residence qualification and residence uplift amount to indirect discrimination contrary to s.19 read with s.29 of the Equality Act 2010 because they place Irish Travellers at a particular disadvantage and the Council had not justified that disadvantage. The Council’s equality impact evidence did not consider the specific effect on Irish Travellers and there was insufficient evidence that a shorter period would undermine the stated aims. The Council also breached its duty under s.11(2) of the Children Act 2004 by failing to record or demonstrate how it had had regard to the need to safeguard and promote the welfare of children when formulating the residence measures.

By contrast, the working household uplift was held to be a proportionate and narrowly focused measure aimed at a legitimate objective and, considered in the round of the Allocation Scheme (including available "safety valves"), was justified and not in breach of s.11(2).

This was a first‑instance judicial review brought by three claimants of Irish Traveller descent challenging aspects of the London Borough of Hillingdon’s Social Housing Allocation Policy (December 2016). The claimants sought declarations that the policy provisions were unlawful and that the Council breached public law duties.

Parties and background

• Claimants: TW (a lone parent and Irish Traveller), SW (her child) and EM (an older man, carer to three disabled adult children; Irish Traveller descent).
• Defendant: London Borough of Hillingdon (Council), which operates a Choice Based Lettings Scheme and a banding system (Bands A–C, with Band D created for some statutorily homeless applicants lacking 10 years’ residence).
• Intervener: Equality and Human Rights Commission (written submissions limited to race ground).

Nature of the claim and relief sought

The claim challenged three provisions as unlawful: the 10‑year residence qualification (para 2.2.4), the 10‑year residence uplift (para 14.3) and the working household uplift (para 14.4). The claim was advanced as indirect discrimination under s.19 of the Equality Act 2010 (and unlawful under s.29 where a public function is performed), and as a breach of the duty in s.11(2) of the Children Act 2004 to have regard to safeguarding and promoting the welfare of children. The claimants sought declarations and judicial review relief.

Issues framed by the court

• Whether each challenged provision is a provision, criterion or practice capable of giving rise to indirect discrimination under s.19 EA.
• If so, whether the measure puts persons who share the protected characteristic (race, sex, disability) at a particular disadvantage and, if it does, whether the measure is a proportionate means of achieving a legitimate aim.
• Whether the Council complied with the duty in s.11(2) Children Act 2004 when formulating and maintaining the challenged provisions.

Court’s reasoning

• The court applied the familiar four‑stage proportionality analysis (as explained in Bank Mellat v HM Treasury (No 2) and related authority), while recognising the general local discretion and judicial deference in housing allocation policy.
• The residence measures were rationally connected to legitimate aims such as rewarding long‑term attachment and promoting stable communities; however, the Council’s evidence did not demonstrate that the substantial disadvantage likely to fall on Irish Travellers had been assessed or justified. The equality impact assessments addressed broad BME/white categories but did not consider Irish Travellers specifically. The Council produced no evidence showing why a shorter residency requirement would fail to meet its objectives. On that basis the residence qualification and uplift were not shown to be proportionate and were unlawful.
• By contrast, the working household uplift was narrowly framed, targeted at working households on low income to alleviate a specific "poverty trap", and the Scheme as a whole contained potential safety valves (hardship review, direct offer, local letting policies, adapted/specialist housing) benefitting those with protected characteristics. The court therefore found the working uplift could be justified.
• On s.11 Children Act 2004, the court found that the Council had not produced contemporaneous records showing how children’s welfare — in particular the likely educational disruption to Traveller children — had been considered when the residence measures were adopted. Therefore the Council breached s.11(2) in relation to the residence measures. The court did not find a breach in relation to the working uplift.

Outcome: the judicial review claim was allowed in part; declarations were to be made that the residence qualification and uplift were unlawful and that the Council breached s.11(2) Children Act 2004 in formulating and maintaining those residence provisions, while the working household uplift was upheld.

This is a first‑instance judgment in which the court allowed the claim in part. The court declared that the 10‑year residence qualification and the associated residence uplift were unlawful indirect discrimination under the Equality Act 2010 and that the Council breached s.11(2) of the Children Act 2004 in formulating and maintaining those residence provisions. The court dismissed the challenge to the working household uplift, holding it to be a proportionate measure when the Allocation Scheme is considered as a whole. The rationale was that the Council failed to assess and justify the specific adverse impact of the 10‑year requirement on Irish Travellers and failed to record adequate consideration of children’s welfare, while the working uplift was narrowly targeted and supported by "safety valves" in the Scheme.