'Working households' provision in Ealing allocation scheme results in unlawful discrimination

Tuesday 24 May 2016

R (H) v Ealing LBC [2016] EWHC 841 (Admin) (HHJ Waksman QC)

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R (H) v Ealing LBC [2016] EWHC 841 (Admin) (HHJ Waksman QC)

In October 2013, Ealing LBC amended its allocation scheme to remove 20% of available lettings from the general pool, and reserve them for ‘working households’ (those where a member of the household worked for 24 hours or more per week) and ‘model tenants’ (existing council tenants who had complied with the terms of their tenancy and were applying for a transfer).

A challenge to the amended allocation scheme was brought by two families. The first was a family of six who were victims of domestic violence, headed up by a single mother with long-standing mental health problems sufficient to render her disabled within the meaning of s6 Equality Act 2010. As a result of her disabilities and caring responsibilities she was unable to work.

The second family comprised two grandparents, their daughter and her son. The daughter had significant physical disabilities including cerebral palsy, and the grandparents, who themselves had health problems, cared for both her and her son and were also unable to work.

The two families challenged the legality of the amended scheme arguing that it gave rise to unlawful discrimination against women, disabled and elderly persons contrary to s19 Equality Act 2010; that it resulted in unlawful discrimination against women, children, disabled and elderly persons and non-council tenants contrary to Art.8 and 14 ECHR; that in adopting and maintaining the scheme, Ealing was in breach of the public sector equality duty; and that in adopting and maintaining the scheme Ealing was in breach of s11 Children Act 2004.

HHJ Waksman QC allowed the claim on all grounds. In relation to the first ground, the amendments to the allocation scheme put women, disabled persons and the elderly at a disadvantage since they were much less likely to be able to work 24 hours per week. The available statistics showed that this disadvantage was more than de minimis. And although the amendments to the scheme pursued a legitimate aim, that of encouraging tenants to work and be well-behaved in respect of their tenancy, there were less intrusive measures available to achieve this aim. For example, other local authorities had adopted schemes which gave increased priority to those who were making a community contribution, which could include paid employment or providing care to another, and provided a discretion to include within this group elderly or disabled applicants who were not able to work.

The dicta of the Supreme Court in Ahmad v Newham [2009] PTSR 62, where it was suggested that it was undesirable for the courts to become involved in disputes as to how social housing should be prioritised under local authority allocation schemes, did not have a bearing on this decision, since Ahmad did not involve a discrimination challenge.

In relation to the second ground, the judge accepted that Art.8 ECHR was engaged in the context of the allocation of social housing, and that women, children, disabled persons, the elderly and non-council tenants all constituted relevant status groups for the purposes of Art.14. The amended allocation scheme resulted in the differential treatment of these groups. And whether or not one applied the ‘manifestly without reasonable foundation’ test, or a less exacting standard (the judge inclined to the latter) the differential treatment could not be justified as there were other, less intrusive ways by which Ealing’s legitimate aims might be achieved and (in relation to the model tenant part of the scheme) there were a proportion of well-behaved, non-council tenants equally in need of accommodation who could not take advantage of the scheme.

In relation to the third and fourth grounds, there had been a failure by Ealing in introducing and maintaining the scheme to make any real inquiry into the potential discriminatory aspects of the amended allocation scheme or its impact on the interests of children, giving rise to a breach of s149 Equality Act 2010 and s11 Children Act 2004. The question of what relief to grant was reserved.

Click here for the judgment.

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