The London Borough of Hillingdon’s housing allocation policy which provides that, subject to exceptions, a person who has not been continuously living in the borough for at least 10 years will not qualify to join its housing register, indirectly discriminates against Irish Travellers and refugees and this had not yet been justified by the council, the Court of Appeal has declared.
One of the exceptions to Hillingdon’s policy was that an unintentionally homeless person who does not satisfy the residence requirement is entitled to join the register; but is placed in band D.
Two challenges were brought against the lawfulness of Hillingdon’s policy, on the ground that it was indirectly discriminatory on the ground of race; and could not be justified.
One, brought by Irish Travellers, had succeeded before Supperstone J (R (TW) v London Borough of Hillingdon  EWHC 1791 (Admin),  PTSR 1678).
The other, by a Kurdish refugee of Turkish nationality, failed before Mostyn J (R (Gullu) v London Borough of Hillingdon  EWHC 1937 (Admin),  HLR 4).
Lord Justice Lewison granted permission to appeal since the courts below reached different answers on substantially the same challenge.
Giving the ruling of the Court of Appeal, he said Supperstone J had not discussed the question whether the PCP (‘provision, criterion or practice’) amounted to indirect discrimination, as this had been conceded by Hillingdon. Instead he concentrated on whether Hillingdon was able to justify its policy, which he found it had not done.
Hillingdon was also prepared to make the same concession before Mostyn J. But the judge did not accept it; and held that the policy did not discriminate against Mr Gullu.
Before the Court of Appeal, counsel for Hillingdon repeated the concession, saying that he was not able to support Mostyn J’s reasoning on this question.
Lord Justice Lewison decided to explain why he considered that this concession was rightly made; and why Mostyn J was wrong to reject it.
The Court of Appeal judge held that Mr Justice Mostyn had committed an error in comparing Mr Gullu with an individual analogue, namely a voluntary migrant from Yorkshire or France.
“If the case were one of direct discrimination, that would be the correct approach,” the Court of Appeal judge said. “But in a case of indirect discrimination, it is not. In the case of indirect discrimination, the correct comparison is between groups rather than individuals.”
Lord Justice Lewison said the groups, for comparative purposes, consist on the one hand of those who share the relevant protected characteristic (“the protected group”); and on the other hand those who do not (“the comparator group”).
“In Ms Ward’s case the relevant characteristic is being an Irish Traveller. In Mr Gullu’s case, it is being a non-UK national. So the question in Ms Ward’s case is: are Irish Travellers put at a disadvantage in satisfying the 10-year residence requirement as compared with persons who are not Irish Travellers? In her case it was common ground that they were. The question in Mr Gullu’s case is: are non-UK nationals put at a disadvantage in satisfying the 10-year residence requirement as compared with persons who are UK nationals?”
Lord Justice Lewison said Mostyn J’s second error was to select as an analogue a person who could not satisfy the 10-year residence requirement (because they were a recently arrived voluntary migrant).
“Compounding this error was his concentration on some only of the comparator group. What he ought to have done was to have considered the comparator group (UK nationals) as a whole. The fact that some members of the comparator group are also disadvantaged by the PCP does not negate indirect discrimination, if a higher proportion of the protected group suffer that disadvantage.
“If, then, one asks: does a 10-year residence requirement disadvantage non-UK nationals more than UK nationals, the answer must be “yes”. A long line of cases has accepted that a residence requirement disadvantages non-UK nationals.”
Lord Justice Lewison said that it was true that a person in one of the reasonable preference groups was permitted to join the register; but those who were homeless and could not satisfy the 10-year residence requirement were placed in band D rather than in any higher band. “That reduces their chances of being allocated accommodation; and in my judgment is a relevant disadvantage,” he said.
The Court of Appeal judge said it had not been legitimate for Mr Justice Mostyn to distinguish the decision of Supperstone J on the ground that the reason why Irish Travellers were put at a disadvantage by the PCP was known. He held that Mostyn J was wrong in finding that the PCP did not amount to indirect discrimination.
In relation to the public sector equality duty, Lord Justice Lewison said he would not hold that Hillingdon were in breach of the PSED in carrying out the initial equality impact assessment in 2013. “At that stage it had not been shown that there was any reason for Hillingdon specifically to have considered non-UK nationals or refugees.”
However, the Court of Appeal said that by the time of the 2016 assessment Mr Gullu had made his challenge in court. “In the light of that challenge, I consider that Hillingdon ought at least to have considered the position of non-UK nationals. But they did not. I would therefore hold that Mr Gullu has established a breach of the PSED.”
In relation to justification, Lord Justice Lewison said the burden lies on the policy maker to justify the impugned PCP. “It is not a legal requirement of justification that the reasons put forward in defence of the PCP must have been present to the mind of the policy maker at the time when the PCP was introduced,” he noted, adding that it was open to a policy maker to advance an ex post facto justification.
Lord Justice Lewison said he did not consider that compliance with the PSED required a policy maker to consider, in advance of formulating a policy, its potential impact on every conceivable protected group.
“There must be some trigger for considering a particular group,” he said. “But that is not a complete answer. It may well be the case that, in formulating a policy, a policy maker has conscientiously attempted to assess the potential indirect discriminatory effect on a number of protected groups; but has reasonably and in all good faith overlooked a particular such group."
However, he added that, in his judgment, "it is incumbent on the policy maker once confronted with the omission, to justify the discrimination as regards that particular group. If a policy amounts to indirect discrimination against group E, I do not consider that it is an answer for the policy maker to say that it has considered groups A, B, C and D.”
Counsel for Hillingdon had sought to rely on a number of features of the scheme as ‘safety valves’, including in particular the possibility of a higher banding being granted on account of hardship, the possibility of a direct offer outside the choice based letting scheme, and the continuing duty to house the unintentionally homeless in priority need under section 193 (2) [of the Housing Act 1996].
The key principle is that the goal is equality of outcome, the Court of Appeal judge said. “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. Mostyn J was wrong to hold otherwise.
“In addition, there is no evidence that the ‘safety valves’ within the allocation policy have actually operated to eliminate the disadvantage to the two protected groups in issue on these appeals…..In my judgment, Supperstone J was correct to reject reliance on the ‘safety valves’ as eliminating the indirect discrimination; and Mostyn J was wrong not to.”
It followed, Lord Justice Lewison said, that taken as a whole, Hillingdon’s housing allocation policy did indirectly discriminate against the two protected groups in issue on these appeals.
On whether this indirect discrimination could be justified, Lord Justice Lewison said there had been a number of flaws in Mostyn J’s reasoning in reaching the conclusion that Hillingdon’s scheme was “not manifestly without a reasonable foundation”.
The Court of Appeal judge said: “In my judgment, Hillingdon has not attempted to justify the indirect discrimination, in the sense of acknowledging that there is discrimination but then explaining why that discrimination is justified. Rather, its efforts have been directed towards showing (unsuccessfully in my judgment) that, taking the scheme as a whole, the negative effect on the relevant protected groups has been overcome.”
The indirect discrimination had not yet been justified, Lord Justice Lewison held.
The Court of Appeal allowed Mr Gullu’s appeal. It also dismissed Hillingdon’s appeal on the discrimination point in TW, although it allowed it on the question of whether there had been a breach of s.11(2) of the Children Act 2004.
Lord Justice Lewison, with whom Lady Justice King and Lord Justice Underhill agreed, made a declaration that the impugned provisions of the policy constitute indirect discrimination against Irish Travellers and non-UK nationals which was unlawful unless justified; and that Hillingdon had not yet shown such justification.
Jamie Burton, barrister at Doughty Street Chambers who acted for Mr Gullu, said: “Refugees and Irish Travellers have long since faced acute housing problems and this is an important decision that seeks to prevent them from facing further disadvantage.
“The Court of Appeal’s decision protects the rights of those disadvantaged by Hillingdon’s criteria by levelling the playing field; it does not require social housing to be given to refugees and Irish Travellers.”
William Ford, Partner at Osbornes Law and Mr Gullu’s lawyer, said: “It has taken a long time to get to this point, with the claim having been issued back in 2016. However, I warmly welcome the clarification from the Court of Appeal on the correct way in which to address whether a policy indirectly discriminates against a group with a protected characteristic, as well as the Court’s guidance on how to approach the question of whether such discrimination can be justified.
“I hope that the Council will now take the opportunity to reconsider its Housing Allocation Scheme and the negative impact it presently has on refugees, who are a particularly vulnerable group who regularly have a significant need for social housing.”