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The High Court upholds discriminatory housing allocations scheme

House key iStock 000004543619XSmall 146x219In partnership with LexisPSL Local Government, Alex Campbell, barrister at Arden Chambers, considers a recent case where a High Court judge considered a discriminatory housing allocations scheme.

In R (XC) v London Borough of Southwark [2017] EWHC 736 (Admin) the High Court has upheld a housing allocations scheme which indirectly discriminates against women and people with disabilities. The decision provides a useful insight into when a discriminatory scheme will be held to be justified and how the court will approach such cases.

What should social housing lawyers take note of?

The House of Lords previously held that courts should be reluctant to get involved in questions of how priority is awarded in allocations schemes in R (Ahmad) v Newham LBC [2009] UKHL 14. That case pre-dated the Equality Act 2010 (EqA 2010), however in R (XC) v Southwark, the High Court has ruled that this reasoning applies equally to cases post-EqA 2010.

The case shows that discriminatory elements of a scheme are easier to justify if they are supported by statutory guidance rather than simply being the brainchild of a particular local authority.

If a discriminatory policy leaves no discretion for the discriminatory element to be set aside in exceptional cases, it is far less likely to be legally justifiable.

Although matters of high policy will only be interfered with by the courts where they are ‘manifestly without reasonable foundation’, individual decisions such as where a particular person ranks in an allocations scheme are not matters of high policy—accordingly any discrimination must be justified by the local authority showing that it is proportionate through the four-stage test described in R (XC) v Southwark.

Even if a scheme or policy when construed overall is not unfavourable towards people with a protected characteristic under EqA 2010, any individual element which is discriminatory must still be justified.

The decision also reminded us that where disputes of fact arise in judicial review claims, unless one party applies to cross-examine another, the basic rule is that the defendant’s evidence is assumed to be correct unless documents showed otherwise.

What was this case about?

Southwark LBC’s housing allocations scheme gave preference (called a ‘priority star’) for housing to people in work or who volunteered in the community. The claimant, a disabled female who acted as a carer for her adult son, argued that this discriminated against people with disabilities because they were less likely to be in work or able to volunteer. She also argued that it discriminated against women who were more likely to be carers and therefore less likely to have time to work or volunteer. Because the claimant did not work or volunteer, she did not qualify for the preference for a housing allocation and her prospects of being offered accommodation were slight.

The High Court was required to consider the correct legal test to be applied by the courts when considering whether a housing allocations scheme is unlawful by reason of it being discriminatory under EqA 2010—namely whether the courts should only intervene if the scheme is ‘manifestly without reasonable foundation’ or whether the local authority must show that any discrimination is proportionate.

In addition the High Court gave consideration to disputes of factual evidence in judicial review claims and as to how they should be resolved.

What did the court decide?

The outcome

The High Court found that the housing allocations scheme was lawful and it therefore dismissed the claimant’s judicial review claim.

Discrimination

The court found that the housing allocations scheme was indirectly discriminatory under EqA 2010 towards people with disabilities because they were less likely to be able to work or volunteer and thereby fulfil the condition for a preference for an allocation of housing. The court also found that the scheme indirectly discriminated towards women because women were more likely than men to be carers who, by virtue of their caring responsibilities, were less likely to be able to work or volunteer.

The court rejected the local authority’s argument that, as long as the scheme overall did not unduly hinder women or people with disabilities, one adverse element of the scheme should not be considered unlawful.

Justification of discrimination

Since the scheme was ‘indirectly’ discriminatory, it could be justified if the discrimination were a proportionate means of achieving a legitimate aim.

The claimant argued that housing allocation schemes are a matter of high policy and therefore the courts should not intervene unless the scheme was ‘manifestly without reasonable foundation’. The court rejected this argument, holding that although housing allocations schemes are a matter of high policy, individual decisions as to where a particular person ranks in the scheme are not matters of high policy. Accordingly the court held that the correct approach was to apply a four-stage test to decide whether the discrimination could be justified as a proportionate means of achieving a legitimate aim:

  • Is there a sufficiently important objective?
  • Is the discriminatory measure rationally connected to that objective?
  • Is the measure used the least intrusive which could be used?
  • Has the local authority struck a fair balance between the objective and the claimant’s rights?

The court held that the scheme did satisfy all four stages. Statutory guidance from central government encouraged local authorities to give preference in their housing allocations schemes to people in work or who contributed to their community. Moreover Southwark’s scheme retained a discretion in exceptional cases to waive any provision in the scheme—since there was therefore a discretion to award a preference notwithstanding that an applicant did not work or volunteer, the scheme was the least intrusive measure and struck a fair balance.

This article was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.