Gullu, R (On the Application Of) v THE LONDON BOROUGH OF HILLINGDON

In an indirect discrimination challenge to a social-housing allocation scheme, an exact comparator is unnecessary, but there must be at least an analogue or sufficiently comparable case. The court may assess justification directly where the alleged difference in treatment and its scale are clear.

A residence requirement may lawfully treat recent arrivals alike, even where one is a refugee, unless their circumstances are materially different for the purpose of the rule. Any discrimination must be assessed under the four-limbed proportionality test, subject to a generous margin of appreciation in allocating scarce social housing. A public-sector equality duty challenge concerns the decision-making process, not the outcome, and succeeds only on established public-law grounds.

The claimant, a Turkish national recognised as a refugee, remained accommodated under Part VII of the Housing Act 1996. He challenged Hillingdon’s allocation scheme, principally its ten-year residence qualification and residence-based additional preference. He also challenged a working-household uplift and alleged breach of the public-sector equality duty.

The claimant argued that the scheme indirectly discriminated against refugees and foreign nationals. The central questions were whether a recent refugee was materially different from another recent arrival for the purposes of the residence rule, whether any equal treatment was objectively justified, and whether Hillingdon had complied with its equality duty.

1. Claim dismissed. The ten-year residence qualification, residence uplift and working-household uplift were lawful. The claimant’s application for permission to appeal was refused.
2. For discrimination purposes, an exact comparator is unnecessary, but there must be at least an analogue. The relevant analogue was another short-term resident, such as a recent arrival from elsewhere in the United Kingdom or the EEA. For the purpose of starting and counting the ten-year period, the refugee and the analogue were in materially the same position. Their different reasons for arriving in Hillingdon did not alter the operation of the rule. There was therefore no actual discrimination.
3. The court nevertheless considered justification. Applying the four-limbed test, the objectives of the residence qualification and uplift were sufficiently important, the measures were rationally connected to those objectives, no less intrusive measure would achieve them without unacceptable compromise, and the importance of the objectives outweighed the limited impact on the claimant. The scheme was not manifestly without reasonable foundation.
4. The same justification principles apply under section 19 of the Equality Act 2010 and, if engaged, article 14 of the Convention. Social-housing allocation attracts a generous margin of appreciation because local authorities must make difficult democratic judgments about scarce housing stock.
5. The duty under section 149 of the Equality Act 2010 requires sufficient regard to the statutory equality goals. A challenge concerns process rather than outcome and succeeds only if the decision is irrational or perverse. Hillingdon’s equality impact assessments adequately addressed the relevant effects, and there was no failure of duty.
6. The ten-year period was within the power conferred by Parliament and was not inconsistent with the governmental guidance, which prescribed a minimum rather than a maximum period. The costs and legal-aid orders were made as set out in the order.

First-instance judicial review. The claim was dismissed and permission to appeal was refused.