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

A housing allocation scheme may lawfully impose qualification criteria, but those criteria must comply with statutory reasonable-preference duties and equality law. For indirect discrimination, the court must identify the particular provision, criterion or practice and compare its impact on relevant groups. A scheme-wide advantage does not cure disadvantage caused by the specific PCP; it may bear on justification. Once a PCP places a protected group and the claimant at a particular disadvantage, the public authority must show that it is a proportionate means of achieving a legitimate aim. That requires evidence addressing the discriminatory impact and the proportionality exercise. A local authority cannot rely on general housing scarcity or localism without addressing that specific impact.

The claimant, a survivor of domestic abuse, had fled accommodation in Brighton and applied to Adur District Council for housing. The council accepted her onto its housing register under paragraph 3.3.3(d) of its allocation policy, but restricted her to Bands C or D because she did not satisfy the policy’s residence requirement.

She sought judicial review, alleging indirect sex discrimination under section 19 of the Equality Act 2010. She argued that women fleeing domestic abuse were particularly disadvantaged because they were more likely to have to move from another local authority area. The council relied on the policy’s local connection requirements, housing scarcity and its allocation priorities. The central issue was whether the restriction to Bands C and D was indirectly discriminatory and, if so, justified.

1. Justiciability and continuing utility. The claim was not academic. It concerned the legality of the allocation policy as it applied to persons fleeing domestic abuse, rather than only the claimant’s individual housing circumstances. Later banding and temporary-accommodation developments did not determine the legality of the Part VI policy.
2. Statutory housing duties. Part VI of the Housing Act 1996 permits local authorities to establish qualification criteria, but those criteria remain subject to the duty to afford reasonable preference to designated groups, including persons owed the main housing duty under section 193(2). The court should generally avoid directing the detailed ordering of housing priorities, subject to statutory unlawfulness and irrationality.
3. Indirect discrimination. Paragraph 3.3.3(d) was the relevant PCP and had to be assessed separately. It placed women fleeing domestic abuse at a particular disadvantage compared with men because women were significantly more likely to be victims of domestic abuse and therefore to move from another area. The claimant was personally disadvantaged because, despite being entitled to reasonable preference, she could obtain only Bands C or D. Statistical evidence and proof that every group member was disadvantaged were unnecessary.
4. The claimant’s preferential treatment in being admitted to the register did not remove the disadvantage caused by the banding restriction. Nor could the council rely retrospectively on paragraph 3.3.3(j) to alter the analysis.
5. Justification and relief. The council bore the burden of showing that the PCP was a proportionate means of achieving a legitimate aim. It provided no evidence that it had specifically considered the effect on women fleeing domestic abuse or conducted the required proportionality assessment. The discrimination therefore remained unjustified, although the council could seek to justify it on reconsideration. The decision of 13 October 2021 was quashed and a declaration was granted that the PCP unlawfully discriminated and had not been justified. Consequential matters, including costs, were left for agreement or further order.

Permission to bring judicial review was initially refused on the papers and on renewal. Court of Appeal: on 14 July 2022, Popplewell LJ allowed the claimant’s appeal against refusal of permission on limited discriminatory grounds. High Court (King’s Bench Division): the claim succeeded; the decision dated 13 October 2021 was quashed and declaratory relief was granted.