8 September 2017, by Connor Johnston
R (H) v Ealing LBC  EWCA Civ 1127, 28 July 2017
In October 2013, the London Borough of Ealing amended its scheme for the allocation of social housing, 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 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 ss19 and 29 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: see R (H) v Ealing LBC  EWHC 841 (Admin).
The Court of Appeal reversed his decision. Sir Terence Etherton, who gave the lead judgment, concluded as follows:
The working households element of the scheme gave rise to indirect discrimination within the meaning of s19 Equality Act 2010. The judge had been right in this respect and had been right to reach this conclusion based on scrutiny of the particular element of the scheme that was subject to challenge, as opposed to considering the scheme as whole. However, the impact of the scheme as a whole on the various protected groups would need to be considered in deciding whether the discrimination could be justified.
The judge had been wrong to hold that this discriminatory effect could not be justified. In particular, he should not have based his conclusion that other less intrusive measures were available, upon a comparison with the allocation schemes adopted by Barnet, Bexley and Hammersmith and Fulham. Those schemes were very different to Ealing’s schemes and the provisions were not analogous. In addition, the judge had failed to consider the scheme as a whole when dealing with the issue of justification, and the various other ways in which the protected groups were given priority.
In relation to the ECHR arguments, (with Davis and Underhill LJJ expressing reservations on this point) the working households element of the scheme fell within the ambit of Art.8, since it related to the provision of accommodation to families who were not in secure accommodation already or who were not accommodated by Ealing at all. Their ‘right to permanent accommodation’ fell within the scope of ‘family life’ as protected by Art.8. Whereas, the model tenants element of the scheme, which was concerned with the transfer of secure tenants, did not relate to any of the core values which Art.8 was intended to protect.
But in any event, on the basis of the evidence before him, the judge was not entitled to conclude that the discriminatory effect of the working households and model tenants was unjustified. As with his reasoning relating to the Equality Act 2010, the judge had wrongly rested his conclusion on the allocation schemes of other local authorities which were not analogous to Ealing’s scheme.
In relation to the public sector equality duty, there was no basis for concluding that the duty had not been discharged in relation to those affected by the model tenants element of the scheme. In relation to the working households element of the scheme, there had been a failure to discharge the duty at the time the scheme was devised and implemented in 2012-13. But Ealing was in the process of carrying out a major policy review of its allocation scheme and was alive to the discrimination issues that had been raised. As such it was not appropriate to quash the scheme on this ground.
The judge had applied too exacting an approach in finding that there had been a breach of s11 Children Act 2004 and had overlooked the evidence adduced by Ealing as to the need for children to have access to stable accommodation and the proportion of lettings made to households with children led by women.
In view of the fact that the scheme was currently under review, there was no purpose to be served by remitting the issue of justification under s19 Equality Act 2010 and Art.14 ECHR for further consideration.
The judgment is available here: R (H) v Ealing LBC  EWCA [Civ] 1127