TW, R (On the Application Of) (No.2) v London Borough of Hillingdon

This judicial review concerned the lawfulness of the London Borough of Hillingdon’s social housing allocation policy, in particular its 10 year residence qualification and uplift, and whether the authority had adequately assessed its impact on Irish Travellers and on children as required by the Equality Act 2010 and section 11 of the Children Act 2004. The court applied the established proportionality approach to assess whether an indirectly discriminatory measure could be justified, drawing on the Bank Mellat framework.

The judge held that Hillingdon had produced an Officers’ Review but that the Review did not contain sufficiently robust empirical analysis of the practical impact of the residence requirement on Irish Travellers or evidence of consultations or reasonable inquiries that the earlier declaration in TW (no.1) had required. Because the requisite evidential foundation for a proportionate justification was absent, Hillingdon remained unable to rely on the 10 year requirement as legally justifiable.

The claim was limited in scope because the claimant had been rehoused and some grounds became academic; however the court concluded that the earlier declaratory relief in TW (no.1) should remain in force pending a satisfactory evidential assessment by Hillingdon.

Background and parties: The claimant, a young mother of Irish Traveller heritage described as TW to preserve privacy, applied for homelessness assistance to the London Borough of Hillingdon in 2015. Hillingdon accepted a duty and provided temporary accommodation. TW challenged the authority’s allocation policy after protracted delay in rehousing; in earlier proceedings (TW (no.1)) the High Court declared aspects of the 10 year residence qualification unlawful. The present proceedings, brought in November 2018, sought judicial review on four grounds including continuing breach of Part VII Housing Act duties, ongoing unlawful application of the residence qualification contrary to the Equality Act 2010, failure to make a decision under the allocation policy, and failure to comply with s.11 Children Act 2004 obligations.

Procedural posture and relief sought: Permission was granted. By the time of the hearing TW had been rehoused in different accommodation (The Brambles), and she commenced the statutory review of suitability under the Housing Act. She therefore withdrew grounds concerned with the immediate suitability of accommodation and decision-making under the Housing Act, but maintained challenges to the continuing lawfulness of the residence qualification under the Equality Act and to compliance with Children Act obligations. Hillingdon had undertaken an internal Officers’ Review of the residence provisions in response to the earlier declaration and relied on that Review as a remedy to the defects identified in TW (no.1).

Issues framed by the court: (i) whether these proceedings remained appropriate in light of rehousing and the statutory routes available to challenge suitability, (ii) whether the Officers’ Review provided sufficient evidence that Hillingdon had assessed the extent of any discriminatory impact of the 10 year residence criterion on Irish Travellers, and (iii) whether Hillingdon had complied with its s.11 Children Act duties in formulating and maintaining the residence requirement.

Reasoning and findings: The court accepted that challenges to the immediate housing decision and suitability were properly for the section 202 review and section 204 appeal process and accordingly treated those grounds as academic and not for determination in the present proceedings. On the core question about the Allocation Policy, the court applied the four-stage proportionality test (Bank Mellat) focusing on the need for an evidential assessment of impact before any balancing exercise could properly be undertaken. The Officers’ Review relied on limited census and register data, did not disaggregate reliably to identify Irish Travellers, and contained no evidence of consultation with external specialist bodies or of interrogation of internal case records that might illuminate how the residence rule operated in practice. The Review therefore failed to describe with sufficient empirical particularity the extent or practical effect of any disadvantage to Irish Travellers or their children. Because that preliminary evidential step remained unperformed, Hillingdon could not properly rely on the 10 year residence criterion as proportionate. The court therefore concluded the declarations made in TW (no.1) should continue in force.

Wider context: The judgment emphasised the practical necessity of a focused evidential assessment where a policy has a probable adverse impact on a protected group and noted that the remedial exercise required by TW (no.1) could potentially be achieved by relatively accessible expert advice and modest internal inquiries.

The court declined to determine challenges relating to the immediate suitability of the claimant’s rehousing because those matters were properly for the statutory review and appeal scheme; those grounds were therefore academic. On the central issue the court held that Hillingdon’s 2018 Officers’ Review did not provide a sufficient evidential assessment of the disadvantage caused by the 10 year residence qualification to Irish Travellers or an adequate record of consideration under section 11 of the Children Act. For that reason Hillingdon remained unable to justify reliance on the 10 year rule and the declarations made in TW (no.1) continue in force.