Ward v Hillingdon LBC; Gullu v Hillingdon LBC  EWCA Civ 692, 16 April 2019
Hillingdon LBC’s allocation scheme contained a residence requirement, which provided that only those who had lived in the borough continuously for at least 10 years would qualify to join the housing register. The residence requirement permitted certain exceptions. For example, a person who was homeless but had not become homeless intentionally could join the register but would be placed within Band D of the scheme.
Two separate challenges were brought to the legality of the residence requirement, on the footing that it resulted in unlawful discrimination. In R (TW) v London Borough of Hillingdon  EWHC 1791 (Admin),  PTSR 1678 an application for judicial review brought by a number of Irish Travellers was successful in the High Court. In contrast, a similar challenge brought by a refugee of Turkish nationality was unsuccessful. See R (Gullu) v London Borough of Hillingdon  EWHC 1937 (Admin),  HLR 4.
Hillingdon appealed against the decision in the first case and Mr Gullu appealed against the decision in the second. The Court of Appeal dismissed Hillingdon’s appeal in part and allowed that of Mr Gullu. The residence requirement amounted to a ‘provision, criterion or practice’ which resulted in indirect discrimination against Irish Travellers and non-UK nationals on the grounds of race, for the purposes of s19 Equality Act 2010. The various ‘safety valves’ in the scheme, taken together with the duties owed to homeless persons under Part 7 Housing Act 1996 – such as the fact that higher banding could be granted on the basis of hardship, and that the unintentionally homeless who were in priority need were owed an accommodation duty under s193(2) Housing Act 1996 – did not negate this. As the court explained, the ‘key principle’ in cases of indirect discrimination is equality of outcome:
If a PCP results in a relative disadvantage as regards one protected group, any measure relied on as a "safety valve" must overcome that relative disadvantage. Put simply, if the scales are tilted in one direction, adding an equal weight to each side of the scales does not eliminate the tilt.
Further, Hillingdon had failed to justify the discriminatory effects of the scheme. The council had not, either in formulating the policy or in the course of the litigation, addressed the question of the extent to which the legitimate aim of rewarding those with a local connection to the borough, would be compromised by relaxing the residence requirement.
In addition, in formulating the residence requirement, Hillingdon had failed to discharge the public sector equality duty (PSED) under s149 Equality Act 2010. The PSED, the court held, does not require a policy maker to consider ‘in advance of formulating a policy, its potential impact on every conceivable protected group’. Rather, ‘there must be some trigger for considering a particular group’. The trigger had been pulled in this case by the fact that, by the time Hillingdon had come to revise the allocation scheme in 2016, Mr Gullu had already commenced judicial review proceedings. In light of which the position of non-UK nationals should have been considered in the equality impact assessments completed at that time. The failure to do so constituted a breach of the PSED.
In contrast, applying the same logic, the court held there had been no breach of s11 Children Act 2004 in the formulation of the requirement. Although the particular position of Irish Travellers with children under-18 had not been considered at the time, the court held that ‘it is not a breach of section 11(2) to fail to consider every situation in which children might find themselves’. However, the court did not rule out the possibility that, ‘now that the position of Irish Travellers with children under the age of 18 has been drawn to Hillingdon's attention, it would be a breach of section 11 (2) to fail to consider them on any future review of the policy’.