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

A local authority cannot justify a potentially indirectly discriminatory housing-allocation criterion without evidence identifying its practical and comparative impact on the protected group. Proportionality requires the authority first to understand what disadvantage the measure causes in practice, rather than relying on theoretical or statistical assumptions. Only then can it assess whether the measure is rationally connected to a legitimate aim, whether a less intrusive measure was available, and whether the impact is proportionate to the likely benefit. Where a statutory review and appeal route exists for challenging the suitability of particular accommodation, judicial review should not intervene prematurely in that individual process. However, the High Court may determine the continuing lawfulness of the underlying allocation policy and maintain declaratory relief where the authority’s review remains evidentially insufficient.

TW, an Irish Traveller and mother of three, had been accepted as homeless by Hillingdon and placed in poor temporary accommodation. In earlier proceedings, TW & Ors v London Borough of Hillingdon [2018] PTSR 1678, the High Court declared unlawful the ten-year residence qualification and uplift in Hillingdon’s allocation policy, including for failure to comply with the duty concerning children’s welfare.

TW subsequently challenged Hillingdon’s continuing conduct. By the hearing, she had been rehoused, so challenges concerning the old and new accommodation were withdrawn or became suitable for the statutory review and appeal process. The remaining issue was whether Hillingdon’s 2018 Officers’ Review had remedied the deficiencies in the allocation policy and demonstrated that its residence requirements were justifiable.

1. Individual accommodation challenge. The statutory scheme under the Housing Act 1996 provided a review under section 202 and an appeal on a point of law under section 204 concerning the suitability of the new accommodation. Judicial review should not intervene prematurely while that process was available. The individual procedural challenge was therefore academic or inappropriate to that extent.
2. Continuing policy issue. The lawfulness of the allocation policy remained a live matter within the supervisory jurisdiction. It was appropriate to determine whether the defects identified in the earlier judgment had been remedied.
3. Proportionality. Applying the four-stage approach stated in Bank Mellat v HM Treasury (no.2) [2013] UKSC 39, [2014] AC 700, the court accepted that localism was an important legitimate objective and that a residence criterion was rationally connected to it. The critical questions concerned the criterion’s intrusiveness and the balance between its benefits and its discriminatory impact.
4. Before that balancing exercise could lawfully be undertaken, Hillingdon had to identify the extent of the disadvantage caused to Irish Travellers in practice and compare it with the position of other applicants. The 2018 Review relied on unreliable or insufficiently relevant data, did not show how the residence criterion determined housing outcomes, and did not adequately investigate the circumstances of Irish Travellers who were affected by it.
5. The Review therefore did not provide sufficient evidence that Hillingdon had assessed the practical disadvantage to Irish Travellers and their children. Hillingdon remained unable properly to rely on the justifiability of the ten-year residence criterion. The declarations made in the earlier proceedings continued in force.

The judgment describes earlier High Court judicial review proceedings in which declarations were made concerning the allocation policy. It does not state that the present judgment was itself an appeal.