Social Housing Speed Read – R. (on the application of Gullu) v Hillingdon LBC and R. (on the application of Ward) v Hillingdon LBC

Facts

The London Borough of Hillingdon had an allocation policy which provided that a person who had not been continuously living in the borough for at least 10 years would not receive housing priority above the lowest band unless they fell under certain exceptions.

Section 166A of the Housing Act 1996 specifies that local authorities are required to have an allocation scheme for determining priority. When setting this policy, councils must also have regard to:

• Guidance provided by the Secretary of State, which encouraged councils to prioritise applicants with a local connection (but also bearing in mind the implications of excluding members of groups of non-qualifying persons and the Equality Act 2010).
• The duty imposed by section 11(2) of the Children Act 2004 to ensure that regard is had to safeguarding and promoting the welfare of children.

The claimants in both cases challenged Hillingdon’s allocation policy on the grounds of unlawful indirect discrimination. They argued that the policy favoured those who had a 10 year residence period and that this was discriminatory towards certain protected groups that would have had less opportunity to fulfil the criteria as a result of their protected characteristic.

The cases

The first case was brought by an Irish Traveller, Ms Ward, who had three children. Ms Ward was put into the lowest priority, as she did not fulfil the residency requirement, and claimed that this policy was discriminatory. Ms Ward also claimed that Hillingdon had failed to comply with its duty under the Children Act. The High Court determined that Hillingdon’s policy was indirectly and unlawfully discriminatory against Irish Travellers and Ms Ward was granted declaratory relief. Hillingdon appealed.

The second case was brought by a Kurdish refugee, Mr Gullu, after he also was put into the lowest priority band as he did not fulfil the same requirement. The High Court dismissed the case as there was no discrimination on the basis that Mr Gullu was not treated any differently to a non-refugee from outside of the borough. Mr Gullu appealed.

Both cases were brought before the Court of Appeal in a joint appeal.

The Court of Appeal

Indirect discrimination

The Court held that Hillingdon’s policy unlawfully indirectly discriminated against both Irish Travellers and refugees as in both cases the effect was that the groups were likely to be significantly disadvantaged by the policy. Hillingdon had failed to justify the policy and had given no consideration of the groups’ circumstances.

Additionally, the High Court had not used the right comparison to consider whether Mr Gullu had been disadvantaged. The question should have been whether the policy disadvantaged non-UK residents compared to UK nationals. When focused on this question, the Court held that the provision did disadvantage non-UK residents more than UK nationals and was indirectly discriminatory.

Public Sector Equality Duty

Although only raised in Mr Gullu’s case, the Public Sector Equality Duty (“PSED”) required Hillingdon to consider groups that may potentially be indirectly discriminated against. As such, because Mr Gullu had already made a legal complaint, Hillingdon should have considered the effect the provision would have had on non-UK nationals; as it had not done so, it had breached the PSED.

Children Act 2004

The Court considered the requirements of the impact of the Children Act upon Hillingdon’s policy, particularly in relation to the children of an Irish Traveller. The Court held that the failure to consider the impact of the residence requirement in these circumstances did not necessarily mean there was a breach of the duty. However, once the position of Ms Ward’s children had been brought to Hillingdon’s attention, the failure to consider the position of Irish Travellers with children in later reviews of the policy could constitute a breach.

Comment

This decision reinforces the importance for housing providers to review and assess their policies as against the impact that it may have upon different members of society.

Whilst it may not be possible to take into account the potential indirect discriminatory effect that a policy can have on every possible group, housing providers should take particular care when a specific group has been brought to their attention.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team