BN, R (on the application of) v London Borough of Hounslow

The court may issue a brief judgment recording an agreed order where proceedings are stayed and no substantive issue is determined, provided that doing so promotes open justice. The judgment recorded the defendant’s acceptance that its residence criterion had unlawfully indirectly discriminated against the claimant and failed to comply with the public sector equality duty. The agreed order required a policy review, interim disapplication of the criterion for specified groups, publication of a notice, and payment of costs.

The claimant sought judicial review of a housing-allocation residence criterion applied by the defendant when refusing her application to join its housing register. Permission was granted on 18 August 2023. The defendant later indicated that it would not contest the claim.

Following an Exceptional Needs Referral Panel decision, the defendant disapplied the criterion in the claimant’s case and agreed that its application had unlawfully discriminated against her on grounds of race and sex, contrary to sections 19 and 29 of the Equality Act 2010, and contrary to article 14 of the European Convention on Human Rights read with article 8. It also accepted breach of the public sector equality duty under section 149 of that Act. The central question before the court was the appropriate agreed remedy.

1. Open justice. The scheduled hearing was vacated because the parties agreed the order to be made. Although the court determined no substantive issue, Fordham J considered it appropriate to issue a brief judgment setting out the agreed terms. This promoted open justice and avoided non-parties being left unaware of orders to which they could obtain access under rules 5.4C and 5.4D of the Civil Procedure Rules.
2. Recorded admissions. The order recorded the defendant’s acceptance that, between 3 April and 8 November 2023, application of the residence criterion unlawfully indirectly discriminated against the claimant on grounds of race and sex, contrary to sections 19 and 29 of the Equality Act 2010. The defendant also accepted discrimination contrary to article 14 of the European Convention on Human Rights read with article 8, and failure to comply with the public sector equality duty under section 149 of the Equality Act 2010.
3. Agreed relief. The proceedings were stayed with liberty to apply. The defendant agreed to review the residence criterion within six months, notify the claimant of the outcome, and put any resulting amendment proposals to its executive. Pending any amendment, it agreed immediately to disapply the criterion for current and future applicants who were non-UK nationals with refugee status and/or applicants who had fled gender-based non-domestic violence. It also agreed to publish a notice explaining that policy.
4. Costs. The defendant was ordered to pay the claimant’s costs, including a payment on account of 60 per cent of the estimated costs and detailed assessment of legal aid costs.

This was a first-instance judicial review. Permission was granted by Murray J’s order dated 18 August 2023. The defendant then indicated that it would not contest the claim. The High Court approved the agreed order, stayed the proceedings with liberty to apply, and recorded the agreed remedial steps.