Ward & Ors, R (on the application of) v The London Borough of Hillingdon & Ors

A residence requirement for access or priority within a social housing allocation scheme may indirectly discriminate where a materially higher proportion of a racial group cannot satisfy it. The comparison required by section 19 of the Equality Act 2010 is between the protected and comparator groups as a whole. The claimant need not explain the cause of the disparity.

Other elements of a scheme eliminate that disadvantage only if they restore equality of outcome. The authority bears the burden of showing that any remaining discrimination is proportionate. A justification may be advanced retrospectively, but it attracts closer scrutiny and must address the scale of the disadvantage, less intrusive alternatives and the balance between harm and benefit.

Hillingdon's housing allocation policy generally required ten years' continuous residence in the borough. Homeless applicants who did not satisfy that requirement could join the register but were placed in the lowest priority band.

Irish Travellers successfully challenged the policy before Supperstone J in [2018] EWHC 1791 (Admin). A Kurdish refugee of Turkish nationality failed in a substantially similar challenge before Mostyn J in [2018] EWHC 1937 (Admin). The conjoined appeals concerned whether the policy indirectly discriminated against Irish Travellers and non-UK nationals, whether any discrimination was justified, and whether Hillingdon had complied with the public sector equality duty and section 11(2) of the Children Act 2004.

1. Disposition. Mr Gullu's appeal was allowed. Hillingdon's appeal was dismissed on discrimination but allowed on the Children Act 2004 issue. The declaration was reformulated to state that the policy constituted indirect discrimination against Irish Travellers and non-UK nationals which was unlawful unless justified, and that Hillingdon had not yet shown justification.
2. The ten-year requirement was a provision, criterion or practice which disadvantaged both protected groups. Indirect discrimination requires comparison between the protected group and the comparator group as wholes. It is immaterial that some comparator-group members also suffer disadvantage, or that the reason for the group disparity is unexplained. Placement of homeless applicants without ten years' residence in band D was a relevant disadvantage.
3. The scheme's hardship arrangements, direct offers and homelessness duties did not remove the discrimination. A safety valve must overcome the relative disadvantage. Measures benefiting protected and comparator groups equally do not restore equality of outcome. Part 7 accommodation was also materially different from Part 6 social housing and could not offset discriminatory distribution of the latter.
4. Hillingdon bore the burden of justification under section 19(2)(d) of the Equality Act 2010. Although retrospective justification is legally permissible, Hillingdon had not assessed the scale of the disadvantage, the effect of shorter residence periods on its legitimate objective, or whether any compromise of that objective would be unacceptable. The fourth stage of proportionality required a genuine balance between the policy's effects and likely benefits. The policy's future review could not itself justify existing discrimination.
5. Hillingdon did not breach the public sector equality duty in 2013 merely by failing to consider every conceivable protected group. By 2016, however, Mr Gullu's pending challenge supplied a clear reason to consider non-UK nationals. Its failure to do so breached section 149 of the Equality Act 2010.
6. There was no breach of section 11(2) of the Children Act 2004 when the general policy was formulated. The duty did not require consideration of every possible situation affecting children. The position of Irish Traveller children might nevertheless require consideration during a future policy review or an individual hardship decision.
7. The arguments under articles 8 and 14 of the European Convention on Human Rights were left undecided because any conclusion would have been obiter.

• Court of Appeal (Civil Division): allowed Mr Gullu's appeal, dismissed Hillingdon's appeal on discrimination, allowed Hillingdon's appeal under the Children Act 2004, and varied the declaration.
• Administrative Court (Supperstone J): in [2018] EWHC 1791 (Admin) , upheld the Irish Travellers' challenge and declared the policy unlawfully discriminatory and contrary to section 11(2) of the Children Act 2004.
• Administrative Court (Mostyn J): in [2018] EWHC 1937 (Admin) , dismissed Mr Gullu's challenge.