The King (on the application of TX) v Adur District Council

The claimant challenged Adur District Council's housing allocation policy (in particular paragraph 3.3.3(d)) on the basis that it operated as a provision, criterion or practice (PCP) which indirectly discriminated against women fleeing domestic abuse, contrary to section 19 of the Equality Act 2010. The court treated the policy as a PCP and accepted that the claimant has the protected characteristic of sex. It found that paragraph 3.3.3(d) puts women fleeing domestic abuse from other local authority areas at a particular disadvantage because they are more likely to have to move area and consequently are limited to Bands C or D despite qualifying for reasonable preference under Part VI of the Housing Act 1996 (including the main housing duty under section 193(2)). The defendant failed to produce evidence showing that the PCP was a proportionate means of achieving a legitimate aim. The court therefore held the policy to be indirectly discriminatory under section 19(2) of the Equality Act 2010 and granted declaratory relief and appropriate consequential relief, without needing to decide the alternative Article 14 ECHR arguments.

The claimant, a survivor of domestic abuse who fled accommodation in another local authority area, sought judicial review of Adur District Council's allocation policy insofar as it limited applicants from outside the district (including those with a local connection under paragraph 3.3.3(d)) to Bands C or D. She relied on section 19 of the Equality Act 2010 (indirect discrimination) and alternatively on Article 14 ECHR read with Articles 3 and 8. Procedurally, permission was initially refused by the Upper Tribunal and by a Deputy High Court Judge but Popplewell LJ allowed an appeal for permission to pursue the discrimination point. The claimant sought a declaration that the policy unlawfully discriminated and quashing of the banding decision dated 13 October 2021.

The issues before the court were: (i) whether the allocation rule in paragraph 3.3.3(d) amounted to a PCP; (ii) whether it put women fleeing domestic abuse at a particular disadvantage compared with men; (iii) whether a sufficient causal link existed between the PCP and the disadvantage; and (iv) whether the defendant could show the PCP was a proportionate means of achieving a legitimate aim. The court accepted that the policy was a PCP and that the claimant had the protected characteristic of sex. Drawing on principles in the Equality Act 2010 and authority about housing allocation and reasonable preference (including Part VI of the Housing Act 1996 and related case law), the court concluded that paragraph 3.3.3(d) does place women fleeing domestic abuse from other areas at a particular disadvantage because they are disproportionately likely to be victims of domestic abuse and therefore to need to move area. The defendant relied on localism, scarce supply of housing and the aim to prioritise those with the strongest local connection, but led no evidence of a proportionality assessment specifically addressing the impact on women fleeing domestic abuse. The court therefore held the PCP unjustified.

As a result the court granted declaratory relief that the PCP is indirectly discriminatory and not justified, and indicated it would grant consequential relief (including quashing the 13 October 2021 banding decision and permitting the defendant to re-make decisions in light of the judgment). The court did not resolve the alternative Article 14 ECHR point because it was unnecessary to do so. The judgment records that anonymity for the claimant was granted given her history and safety concerns.

This first-instance claim succeeds. The court held that paragraph 3.3.3(d) of the Defendant’s allocation policy is a provision, criterion or practice which indirectly discriminates against women fleeing domestic abuse in breach of section 19(2) of the Equality Act 2010. The Defendant failed to show that the PCP was a proportionate means of achieving a legitimate aim. The court granted declaratory relief that the PCP is unlawfully discriminatory and not justified and indicated consequential relief (including quashing and remittal of the 13 October 2021 decision), and did not determine the alternative Article 14 ECHR arguments because they were unnecessary to the outcome.

Permission to bring judicial review was refused on the papers by Upper Tribunal Judge Church on 25 February 2022 and refused on renewal by Richard Hermer KC (sitting as Deputy High Court Judge) on 28 April 2022. Popplewell LJ allowed an appeal against that refusal on 14 July 2022, granting permission on limited grounds (the arguable discrimination point).