R (oao) YG v London Borough of Hillingdon

The claimant challenged Hillingdon’s housing allocation scheme, principally its 10-year residency qualification and related uplifts, as unlawfully discriminatory against refugees and foreign nationals and as breaching the public sector equality duty. The court analysed discrimination principles (including comparator/analogue approaches) and applied the four-limb proportionality/justification test to any assumed indirect discrimination. The judge found no actual discrimination in the claimant’s favour because a refugee recent arrival is, for the purpose of the residency clock, analogous to other recent arrivals; alternatively, even if there were a discriminatory effect it was objectively justified as a legitimate, rational, and proportionate means of prioritising scarce social housing.

The court also held that Hillingdon had complied with its public sector equality duty by carrying out full Equality Impact Assessments and giving due regard to equality matters. The procedural challenge failed and the claim for judicial review was dismissed.

This is a first-instance judicial review challenge to the London Borough of Hillingdon’s December 2016 housing allocation scheme. The claimant, a Kurdish national granted refugee status in 2013 and accommodated under Part VII of the Housing Act 1996, sought review of Hillingdon’s refusal to register him on the allocation scheme on the basis that the scheme’s 10-year local residency qualification and associated priority uplifts discriminated against refugees and non-UK nationals and breached the public sector equality duty.

Nature of the claim/application: application for judicial review seeking to quash or alter Hillingdon’s decision not to register the claimant / to challenge the lawfulness of the allocation scheme provisions (10-year residency qualification, the 10-year additional preference uplift, and the working household uplift).

Issues framed by the court:

• Whether the 10-year residency rule and the uplifts amount to unlawful indirect discrimination under equality law (and whether Article 14 of the Convention was engaged);
• Whether, if discriminatory effect existed, the measures were objectively justified applying a four-limb proportionality test; and
• Whether Hillingdon complied with the Equality Act 2010 public sector equality duty in form and substance (including the adequacy of Equality Impact Assessments) and whether the 10-year duration was irrational.

Reasoning and outcome: The judge analysed comparator/analogue reasoning and concluded that, for the purpose of counting continuous residence, recent refugees and other recent arrivals are materially analogous; therefore there was no demonstrated unequal treatment. He nevertheless proceeded to justification: the objective of rewarding local attachment and prioritising scarce housing was important and democratically grounded; the measure was rationally connected to that objective, there were no less intrusive measures that would achieve the same legitimate aim, and the balance of effects favoured the public interest. The court afforded a generous margin of appreciation in housing allocation matters. The Equality Impact Assessments were treated as adequate evidence of having had due regard under s.149 of the Equality Act 2010. The court dismissed the claim and refused permission to appeal.

The claim for judicial review is dismissed. The judge held that the claimant did not establish unlawful discrimination: a recent refugee is, for the purpose of the residency clock, analogous to other recent recent arrivals and therefore not subject to different treatment; alternatively, any discriminatory impact was objectively justified under the four-limb justification test given the important public objectives, rational connection, lack of less intrusive effective alternatives and the proportionality of the measures. The public sector equality duty had been discharged by adequate Equality Impact Assessments.