A scheme under which a London council removed 20% of available lettings from the general pool and reserved them for working households and ‘model tenants’ was discriminatory and unlawful, a High Court judge has ruled.
The case of R (H and others) v Ealing LBC  EWHC 841 (Admin) involved a challenge to Ealling’s introduction of an amendment to its housing allocations policy in October 2013.
The aims of the scheme were to incentivise tenants to work or return to work and to encourage good behaviour. Policies along similar lines have been introduced in other London councils, including Barnet, Bexley and Hammersmith & Fulham.
The claimants in H and others were two families who together had the ‘protected characteristics’ of disability, age and gender under the Equality Act 2010.
The claimants were unable to meet the work requirement of Ealing’s scheme. They also could not be ‘model tenants’ as this only applied to council tenants.
His Honour Judge Waksman QC, sitting as a judge of the High Court, allowed the challenge to the scheme on all four grounds. These were that:
1. The scheme unlawfully discriminated against women, disabled and elderly persons contrary to sections 19 and 29 of the Equality Act 2010 and unlawfully discriminated against women, disabled and elderly persons and children of single parent carers contrary to Article 14 ECHR (read with Article 8 ECHR) in relation to the working household provisions.
2. The scheme unlawfully discriminated against tenants who do not hold council tenancies contrary to Article 14 ECHR (read with Article 8 ECHR) in relation to the model tenant provisions. “In my view, it cannot be said that as against the aim of encouraging tenants to work and incentivising good tenant behaviour, the scheme is the least intrusive method without unacceptable results or that a fair balance has been achieved," the judge said.
3. In adopting and maintaining the scheme, the council was in breach of its public sector equality duty under section 149 of the Equality Act 2010. “If the approach of the council in its PSED was simply to look at the overall allocation policy as a whole as opposed to looking at the possible discriminatory effect of the Scheme itself, then.... it will have been concentrating on the wrong matters. That would inevitably flaw the 'due regard' process. In my judgment, that has clearly occurred here to a considerable extent.” The judge added that what was missing was any real enquiry into and consideration of the potential discriminatory effects of the working household elements of the scheme in particular.
4. Ealing was in breach of the obligations to safeguard and promote the welfare of children imposed by section 11 of the Children Act 2004. “Not all children may be adversely affected by the Scheme but those with single-parent carers who cannot work, will be. Here, there appears to have been no actual consideration of the interests of children in this context.”
HHJ Waksman QC quashed the scheme.
An Ealing Council spokesperson said: “The council is disappointed with the result and we are considering the implications of the decision and seeking legal advice as to our next step in this matter.”
Steve Broach of Monckton Chambers – who appeared for the claimants, instructed by Hopkin Murray Beskine – said this meant that at least until a replacement scheme was put in place Ealing would not be able to ringfence any properties for these groups. “As a result the claimants and other families in their position will be able to bid for all available properties in each bidding round.”
Broach added: “The judgment has important implications for all councils with housing responsibilities, particularly London councils who have to manage very high demand for social housing in the face of a very limited supply.”
Matt Hutchings of Cornerstone Barristers appeared for Ealing, instructed by the council’s legal department.