Ealing London Borough Council v R H and Others The Equality and Human Rights Commission (Intervener)

JurisdictionEngland & Wales
JudgeSir Terence Etherton, MR,Lord Justice Davis,Lord Justice Underhill
Judgment Date28 July 2017
Neutral Citation[2017] EWCA Civ 1127
Docket NumberCase No: C1/2016/1860
CourtCourt of Appeal (Civil Division)
Date28 July 2017
Between:
Ealing London Borough Council
Appellant
and
The Queen on the application of H and Others
Respondents

and

The Equality and Human Rights Commission
Intervener

[2017] EWCA Civ 1127

Before:

Sir Terence Etherton, MR

Lord Justice Davis

and

Lord Justice Underhill

Case No: C1/2016/1860

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

HIS HONOUR JUDGE WAKSMAN QC

(SITTING AS A JUDGE OF THE HIGH COURT)

Royal Courts of Justice

Strand, London, WC2A 2LL

Matt Hutchings QC (instructed by London Borough of Ealing) for the Appellant

Ian Wise QC and Michael Armitage (instructed by Hopkin Murray Beskine Solicitors) for the Respondents

Dan Squires QC (instructed by Equality and Human Rights Commission) for the Intervener

Hearing dates: 20 & 21 June 2017

Approved Judgment

Sir Terence Etherton, MR
1

This appeal concerns the lawfulness of the housing allocation policy ("the Housing Policy") of the defendant Council ("Ealing") insofar as it sets aside a small but not insignificant proportion of lettings for "working households" and "model tenants". It is said that the working household priority scheme ("the WHPS") discriminates indirectly against women, the elderly and the disabled, and that the model tenant priority scheme ("the MTPS") (together "the two Priority Schemes") directly discriminates against non-Council tenants.

2

There are two questions for this Court. First, whether section 2 paragraph 2 of the Housing Policy was unlawfully discriminatory contrary to sections 19 and 29 of the Equality Act 2010 (" EA 2010") and Article 14 in conjunction with Article 8 of the European Convention on Human Rights ("the Convention"). Second, whether in adopting and maintaining the two Priority Schemes, Ealing was in breach of its public sector equality duty ("the PSED") under EA 2010 s.149, as well as section 11 of the Children Act 2004 ("CA 2004").

3

This is an appeal against the order of HHJ Waksman QC sitting as a judge of the High Court dated 18 April 2016. By his order, the Judge allowed the claimants' application for judicial review, and made a declaration finding for the claimants on both of the issues set out above.

The background

4

The Judge below set out the factual background to the two Priority Schemes at length (see: [2016] P.T.S.R. 1546; [2016] EWHC 841 (Admin)). The following summary of the facts is sufficient to understand the context of the appeal.

5

Ealing is a local housing authority for the purposes of the Housing Act 1996 ("HA 1996"). The claimants are two families which Ealing has a duty to house. The first claimant is a disabled single mother, and the second claimant is her youngest child, who at the time of the hearing before HHJ Waksman was four years old. The third and fourth claimants are an older married couple and are both disabled. Their daughter is the fifth claimant, a disabled single mother whose infant son is the sixth claimant.

6

Prior to October 2013, the Housing Policy operated by reference to four priority bands to which applicants were allocated according to the urgency of their housing need:

(1) Band A: Emergency and Top Priority Members;

(2) Band B: Members with an urgent need to move;

(3) Band C: Members with an identified housing need, and

(4) Band D: No priority status, i.e. all the remaining seekers of Council housing. They cannot actively bid for properties save those which are not wanted by anyone in the higher bands.

7

Within bands, applicants were ranked chronologically by reference to the date of their entry into that band.

8

In 2012 Ealing decided to amend the Housing Policy to reward applicants from working households and model tenants. An equality impact assessment ("EIA") was completed and concluded that there was no evidence that the two Priority Schemes would be discriminatory. The two Priority Schemes were first published in August 2012. They were piloted over a six month period, and at the end of the pilot a review concluded that the policy changes did not appear to have had a negative impact on any particular equalities group. The two Priority Schemes were accordingly fully launched in October 2013. Section 2, paragraph 2 of the Policy provided that:

"2. Applicants who work or adhere to the rules in conducting their Council tenancy

20% of lettings will be made available to applicants from working households and those Council tenants who comply with their tenancy agreement and pay their rent and council tax.

Working households will only qualify if they have been employed for a minimum of 24 hours a week and for 12 out of the last 18 months. Evidence of employment will be required in the form of tax returns, copy of employment contract and/or any other suitable proof as requested.

Ealing Council has a scheme which rewards good tenants who want the opportunity to seek a transfer. These transfer applicants are existing tenants who have demonstrated that they are "model" tenants by complying with their tenancy agreement for a specified period of time.

In order to bid successfully for properties advertised as part of this scheme, Households:-

a) Must not have rent arrears for the previous 12 months.

b) Must not have breached their tenancy conditions for the previous two years.

c) Must not have any anti-social behaviour record.

Once tenants have been accepted for the scheme they must continue to comply with the above criteria until they are rehoused in order to remain with the scheme.

Applications will be prioritised by band and date within that band…"

Of the 20%, 15% was allocated to the WHPS and 5% to the MTPS. The broad aim of the WHPS is to incentivise tenants to work or return to work, and the broad aim of the MTPS is to encourage good tenant behaviour.

The relevant statutory framework

9

The relevant statutory provisions relied upon by the claimants are as follows. Firstly, EA 2010 s.19:

"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—(a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim."

10

EA 2010 s.29 renders unlawful discrimination by a person providing services to the public or in the exercise of a public function.

11

A separate claim is made under Article 14 in conjunction with Article 8 of the Convention.

12

Article 8 states:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

13

Article 14 of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status."

14

The claimants further allege that in maintaining the two Priority Schemes Ealing was in breach of its PSED under EA 2010 s.149, which provides:

"Public sector equality duty

(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) tackle prejudice, and

(b) promote understanding.

(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be...

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