Allocation: additional priority for working tenants and those making community contribution not unlawful

Friday 26 May 2017

R (XC) v London Borough of Southwark [2017] EWHC 736 (Admin), 6 April 2017

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R (XC) v London Borough of Southwark [2017] EWHC 736 (Admin)(6 April)

The London Borough of Southwark operated an allocation scheme which determined relative priority between those applicants with a statutory reasonable preference by taking into account various factors including their financial resources and the contribution made by the applicant to the borough or to their local community.

For example if they were working or volunteering. Specifically, an applicant's priority was to be determined by assessing his or her circumstances, placing his or her application in Bands 1-4, as appropriate, and then, within each band, relative priority would be determined with reference to (a) length of time spent on the register and (b)'priority stars'.

One priority star would be awarded for each of the statutory reasonable preference categories, one star for a working household, and one star for applicants undertaking 'a community contribution'. A community contribution required the applicant to have been volunteering for a minimum period of ten hours per month for at least six months, among other things.

The Claimant, Ms XC, was a single, disabled woman who argued that she was unable to carry out paid employment or voluntary work owing to mobility problems and because she had caring responsibilities for her adult son who lived elsewhere in the borough.

Ms XC sought to challenge the priority star element of the scheme arguing that it was contrary to ss19 and 29 of the the Equality Act 2010 in that it discriminated indirectly against disabled persons who, like her, could not work or volunteer by reason of disability and against women who, like her, could not work or volunteer by reason of their caring responsibilities, such responsibilities being typically being undertaken by women more than men.

Garnham J dismissed her claim. The priority star element of the scheme did result in indirect discrimination against persons with a disability and against women. However, applying the structured approach to proportionality as set out in Bank Mellat v HM Treasury (No 2) [2014] AC 700, the priority star system was a proportionate means of achieving the legitimate aims of creating sustainable and balanced communities and encouraging residents to make a contribution to the local community.

To expand the priority star element of the scheme to include those such as Ms XC, would inevitably reduce the ability of the council to cater for those who benefited from the reasonable preferences provided for by the scheme. As such, there was no less intrusive measure which might have been adopted instead without unacceptably compromising the objective of the scheme.

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