Court of Appeal rejects claim judge was wrong to exclude evidence in dispute over impact of housing allocations scheme on people with disabilities

Lord Justice Lewis, who gave the judgment of the court, also rejected claims that the London Borough of Enfield had breached sections 19 (indirect discrimination), 20 (duty to make adjustments) or 149 (public sector equality duty) of the Equality Act 2010.

Enfield’s housing allocations scheme provided that particular categories of persons would be awarded a certain number of points and they could use those points to bid for appropriate housing that became available.

Properties would be allocated to those with the greatest number of points or, if each applicant had the same number of points, to the person that had been on the waiting list longest.

The allocation scheme also provided that homeless persons living in accommodation provided by the council pursuant to a duty under section 193 of the Housing Act 1996 be awarded 200 points.

In addition, persons with a low or medium health and wellbeing need could be awarded 50 or 150 additional points respectively.

Those who were homeless, however, were not eligible for the award of these additional points, Lord Justice Lewis explained.

The appellant, RR, is a person who is owed a duty under section 193 of the 1996 Act. He is also on the waiting list for the allocation of accommodation under Part VI of the Act.

RR submitted that the provision of the allocation scheme, whereby homeless persons could not obtain additional points for a low or medium health and wellbeing need, amounted to a provision, criterion or practice (referred to as a PCP) within the meaning of section 19 of the 2010 Act and was discriminatory.

“In particular, the appellant submits that the PCP puts homeless households containing a disabled person (such as the appellant's household) at a particular disadvantage when compared with homeless households with no disabled members,” Lord Justice Lewis said.

“The particular disadvantage is said to be that homeless households with a disabled member wait longer for the allocation of housing under Part VI as compared with homeless households without a disabled member.”

RR also argued that Enfield could not show that that PCP was a proportionate means of achieving a legitimate aim. He also submitted that the council had failed to make reasonable adjustments in accordance with its duty under section 20 of the 2010 Act by failing to give him additional preference. He also submitted that Enfield was in breach of its obligation under section 149 of the 2010 Act to have due regard to specified equality considerations.

HHJ Walden-Smith, sitting as a High Court judge, dismissed the claims under sections 19 and 20 of the 2010 Act.

She also refused to admit three categories of evidence, namely, a January 2023 All-Party Parliamentary Group report on Households in Temporary Accommodation, an October 2023 report of Shelter and the council’s response to a freedom of information request.

HHJ Walden-Smith found, however, that Enfield was in breach of its obligations under section 149 of the 2010 Act in failing to monitor and collect statistics relating to the allocation of housing to households with a disabled person.

She refused a remedy as the decision would not have been different if the respondent had complied with what the judge described as its duty to monitor and record statistics, applying the provisions of section 31(2A) of the Senior Courts Act 1981.

The appellant was given permission to appeal on four grounds, namely:

(1) it was unjust and irrational for HHJ Walden-Smith (i) to exclude evidence that was relevant to the question of whether the respondent's policy had a disproportionate impact upon people with disabilities and (ii) consequently to conclude that the appellant had failed sufficiently to demonstrate that the policy had such an impact;

(2) the judge did not apply the correct burden and standard of proof as required by section 136 of the 2010 Act in respect of the duty to make reasonable adjustments under section 20 of the 2010 Act;

(3) the judge did not apply the correct burden and standard of proof as required by section 136 of the 2010 Act in respect of the claim that the policy gave rise to indirect discrimination contrary to section 19 of the 2010 Act;

(4) the judge was wrong to refuse a remedy in respect of the breach of section 149 of the 2010 Act as (i) she adopted an incorrect approach to section 31(2A) of the 1981 Act and (ii) was wrong to conclude that the outcome would not have been substantially different if section 149 had not been breached.

The appellant also sought permission to adduce new evidence in the form of statements made by Enfield and recorded in a BBC news report, and a report of the Local Government and Social Care Ombudsman.

The council in turn sought to uphold the decision on an additional ground, namely that HHJ Walden-Smith erred in finding that there had been a breach of section 149 of the 2010 Act.

It also sought an order dismissing the appeal as it had become academic because the allocation scheme was amended in April 2025 and because the appellant was no longer registered under the scheme as he had obtained a private-sector tenancy.

The Court of Appeal rejected the council’s arguments that the claim was now academic and went on to consider the other issues raised.

Lord Justice Lewis concluded that the three documents relied upon by the appellant were not documents capable of establishing the necessary facts in this case. “They do not demonstrate that the PCP adopted by the respondent is putting homeless households with disabled members at a particular disadvantage by having to wait longer than homeless households without a disabled member for the allocation of social housing under the respondent's housing allocation scheme.”

He added: “As the judge rightly concluded….., the evidence that was needed was evidence which established that the respondent's allocation scheme included a PCP which put homeless households with a disabled member at a particular disadvantage as compared with homeless households without a disabled member. In particular, there needed to be evidence that the former group of persons were waiting longer in temporary accommodation (i.e. that provided under Part VII) than the other group. The material relied upon did not begin to establish facts from which such an inference could be drawn.

“At the very most, all that the three items of evidence might do is suggest that there are, or may be, difficulties (at least, in some cases and in some local housing authority areas) with the quality or suitability of housing provided to homeless persons pursuant to Part VII. They do not begin to establish the material facts in this case, namely that one group of homeless households is waiting longer than another group before being allocated Part VI accommodation. The Judge was entitled to conclude that the material which the appellant sought to have admitted at the hearing below was not relevant and to decline to admit it.”

On the additional evidence the claimant was seeking to admit (the BBC news item and the Ombudsman’s report), Lord Justice Lewis said: “Both of those documents deal with the question of whether or not homeless households are being provided with accommodation pursuant to Part VII which is unsuitable. That evidence does establish the facts needed to enable an inference to be drawn that there is unlawful discrimination in the allocation of social housing under Part VI. The evidence might, depending on one's view, establish that accommodation provided pursuant to Part VII is not suitable (in breach of the obligations imposed by the relevant provisions of Part VII). It might, depending on one's view, suggest that if a particular group of homeless households were spending more time in Part VII accommodation than another group, any disadvantage associated with living in Part VII continued for longer. [Judge's emphasis]

“But it is not capable of establishing that one group of homeless households (i.e. those with a disabled member) are spending longer in Part VII accommodation, or waiting longer to be allocated social housing under Part VI, than another group of homeless households (i.e. those without a disabled member). For those reasons, although I have read and considered both items of evidence, I would not grant permission for the evidence to be adduced.”

Lord Justice Lewis added that there was a second, separate reason why the appellant was unable to establish that the PCP was discriminatory.

“It, that is the PCP, must put the persons with protected characteristics at a particular disadvantage. There needs to be a causal connection between the PCP and the particular disadvantage,” he said.

“Here, the PCP is the provision of the housing allocation scheme which provides that persons cannot be allocated an additional 50 or 150 points for a low or medium priority health and wellbeing need. There is no evidence that the inability to acquire an additional 50 or 150 points is the cause of the particular disadvantage being alleged, i.e. that certain groups are waiting longer than others to be allocated social housing under Part VI. The evidence, such as it is, suggests that any time waiting to be allocated an appropriately sized property is linked to the shortage of available properties within the borough not the PCP and the fact that homeless households cannot claim an additional 50 or 150 points for a low or medium health and wellbeing need.”

Lord Justice Lewis therefore dismissed grounds 1 and 3 and refused the appellant's application to admit new evidence.

Turning to the duty to make reasonable adjustments, Lord Justice Lewis said HHJ Walden-Smith did not make the errors alleged by the appellant.

He also said there was no evidence establishing facts from which a court could infer that there had been a contravention of section 20(3) of the 2010 Act. “In particular, there is no evidence that the PCP is putting disabled persons at a substantial disadvantage in comparison with persons who are not disabled.”

The Court of Appeal judge continued: “For completeness, the adjustment sought by the appellant was that homeless households with members who had a serious disability should gain additional priority over non-disabled persons in the same homeless cohort (see [66] of the judgment below). The Judge concluded that, even if the appellant were able to establish that there was a duty to make a reasonable adjustment, the adjustment sought was not a reasonable one. To give such additional priority would run counter to the allocation scheme that the respondent was entitled to adopt…..

“I consider that the Judge was entitled, indeed correct, to reach that conclusion. Local housing authorities are required to adopt an allocation scheme determining priorities in allocating housing accommodation and "shall not allocate housing accommodation except in accordance with their allocation scheme" (Section 166A(14) of the 1996 Act). The respondent has adopted an allocation scheme. That scheme is lawful. It sets out the priorities for particular groups. It would not be a reasonable adjustment to depart from that scheme and allocate housing in a different way.”

Lord Justice Lewis meanwhile allowed Enfield’s appeal in relation to whether it had breached s.149 of the Equality Act 2010.

He said that in the circumstances, HHJ Walden-Smith was wrong to conclude that there had been a failure by Enfield to have due regard to the relevant equality consideration. “She failed to consider the relevant exercise of functions and to consider whether, in exercising those functions, the respondent had failed to have due regard to the specified equality considerations. Rather, the judgment indicates that the Judge erroneously considered that there was some free-standing duty to monitor or collect statistics and that there had been breach of that duty.”

Lord Justice Lewis said that if there had been such a breach (which there was not), then he would have upheld the decision of HHJ Walden-Smith to refuse a remedy.

Sir Geoffrey Vos, Master of the Rolls, and Lady Justice Whipple agreed.