R (Ward) v Hillingdon London Borough Council

The Court of Appeal held that Hillingdon’s 10-year local residence qualification (and the policy of placing reasonable-preference applicants who lack that qualification into a lower priority band D) amounts to a provision, criterion or practice (PCP) which indirectly discriminates against two protected groups: Irish Travellers and non-UK nationals. The court accepted that such a residence requirement is capable of disadvantaging those groups and that Hillingdon had not discharged the burden of showing the indirect discrimination was justified.

The court considered the public sector equality duty (section 149 Equality Act 2010) and concluded Hillingdon had breached it in relation to non-UK nationals because, by the time of the 2016 impact assessment, the council ought to have considered that group. The court rejected reliance on so-called "safety valves" in the policy (hardship banding, direct offers, the Part 7 homeless duty) as sufficient to eliminate the disadvantage. It also held that there was no breach of section 11(2) Children Act 2004 in the formulation of the policy.

Background and parties:

• The appeals arose from judicial review challenges to the London Borough of Hillingdon's housing allocation policy which, subject to exceptions, precluded people who had not been continuously resident in the borough for ten years from joining the housing register; homeless persons who did not meet the residence requirement could join but were placed in a lower priority band D.
• Two separate challenges reached the Administrative Court with different outcomes: Supperstone J found the policy unlawful as regards Irish Travellers (R (TW) v Hillingdon [2018] EWHC 1791 (Admin)); Mostyn J rejected a challenge by a Kurdish refugee, Mr Gullu (R (Gullu) v Hillingdon [2018] EWHC 1937 (Admin)). Both appeals came to the Court of Appeal.

Nature of the claims and relief sought:

• Both claimants sought declarations and relief by judicial review that the allocation policy unlawfully discriminated indirectly on grounds within the protected characteristic of race (including nationality and ethnic origins), that the public sector equality duty (section 149 Equality Act 2010) had not been complied with, and that the authority had breached its duties under section 11(2) Children Act 2004 in formulating policy. One claimant also advanced ECHR arguments (articles 8 and 14).

Issues framed by the court:

1. Whether the 10-year residence requirement (and the placement of reasonable-preference homeless applicants without that residence in band D) constituted a PCP which put Irish Travellers and non-UK nationals at a particular disadvantage (indirect discrimination under section 19 Equality Act 2010).
2. If so, whether Hillingdon could justify the PCP as a proportionate means of achieving a legitimate aim (four‑stage proportionality analysis derived from Bank Mellat (No 2)).
3. Whether the public sector equality duty had been followed during formulation of the 2016 policy (s149 Equality Act 2010).
4. Whether there had been a breach of the local authority's duty to have regard to safeguarding and promoting the welfare of children when formulating policy (s11(2) Children Act 2004).

Court’s reasoning and conclusions:

• The court held that the 10-year residence PCP was a neutral rule that placed a relevant disadvantage on Irish Travellers and non-UK nationals because those groups are inherently less likely to satisfy a long residence test. The correct comparison for indirect discrimination is between groups, not single individual analogues (following Essop and related authorities).
• Reliance on "safety valves" within the wider scheme (hardship uplift, direct offers, and Part 7 duties) could not, on the evidence, be treated as removing the PCP's discriminatory effect: those measures did not demonstrably eliminate the disadvantage and, in any event, are matters for the justification stage rather than denial of discrimination.
• Hillingdon had not justified the indirect discrimination: the evidence as to the scale of disadvantage was inadequate, there was no proper analysis of less intrusive alternatives (the statutory guidance suggests two years as a reasonable period) and the council had not balanced the competing considerations in an evidentially supported way.
• On the public sector equality duty, the court held that, by the time of the 2016 assessment and after Mr Gullu's challenge, Hillingdon ought to have considered the impact on non-UK nationals and had failed to do so.
• As to section 11(2) Children Act 2004, the court concluded (unlike the Administrative Court below) that there was no breach in the formulation of policy: policy formulation does not require exhaustive consideration of every situation affecting children and there was evidence of engagement with children's services and numerous child‑friendly provisions in the policy.

Remedy and disposition:

• The court issued a declaration in language modelled on the Supreme Court's approach in R (Coll): the impugned provisions amount to indirect discrimination against Irish Travellers and non‑UK nationals which is unlawful unless justified, and Hillingdon had not shown such justification. The court allowed the appeal in part on discrimination grounds and found no breach of the Children Act duty.

Appeal allowed in part. The Court of Appeal held that Hillingdon’s 10‑year residence requirement and the policy of placing reasonable-preference applicants who lack it into band D amount to a PCP that indirectly discriminates against Irish Travellers and non‑UK nationals; Hillingdon had not justified that discrimination and had breached the public sector equality duty in relation to non‑UK nationals. The court declined to find a breach of section 11(2) Children Act 2004 in the formulation of policy and discharged the lower court’s declaration on that point. The court therefore issued a declaration that the impugned provisions are indirect discrimination which is unlawful unless justified, and concluded justification had not been shown.

Two judicial review decisions in the Administrative Court were appealed to the Court of Appeal: R (TW) v London Borough of Hillingdon [2018] EWHC 1791 (Admin) (Supperstone J) where the challenge by Irish Travellers succeeded, and R (Gullu) v London Borough of Hillingdon [2018] EWHC 1937 (Admin) (Mostyn J) where the challenge by Mr Gullu failed. The Court of Appeal (Lewison LJ, King LJ and Underhill LJ) heard both appeals together and issued the present judgment [2019] EWCA Civ 692.