Judge quashes decision letter over discriminatory impact of housing allocations policy on domestic abuse survivor

A High Court judge has ruled that a local authority’s housing allocations policy and its application to a domestic abuse survivor amounted to indirect discrimination.

In TX, R (On the Application Of) [2022] EWHC 3340 (Admin), the claimant had invited the court to:

1. declare that the defendant council's policy unlawfully discriminated against those who are fleeing domestic abuse; and
2. quash the decision made by the defendant on 13 October 2021 ('the Decision Letter') and remit it for reconsideration.

The claimant’s argument was that the district council’s housing allocations policy operated to preclude applicants in her position from being placed in the highest bands. 

The policy was first adopted in 2007, with the current version dated 6 February 2014. In accordance with the policy, those applicants who are permitted to join the housing register are placed in one of four bands: A, B, C, or D, which reflect priority needs. Those in Band A have priority over those in Band B, and so on. The proceedings relate to the council’s decision to limit the claimant to Band C.

Margaret Obi (sitting as a Deputy High Court Judge) noted that the claimant was originally from the defendant council's area and her family continued to live there. She is the tenant of a property outside the area, let to her by another council. She fled that property in November 2020, following domestic abuse from her partner and went to live with her mother in the defendant's area.

The claimant applied to the defendant as homeless and made an application to be placed on the defendant's housing register for permanent accommodation.

In April 2021, the defendant accepted the initial housing duty towards the claimant under section 189B of the Housing Act 1996. In September 2021, the defendant council accepted the main housing duty under section 193(2) of the Act.

The claimant, after her claim was lodged, remained in accommodation arranged by the district council until she left, on or around 1 August 2022, citing a fear of violence.

Following a separate judicial review claim (JR1) lodged by the claimant, the woman was accepted on the defendant's housing register and placed in Band C.

In a letter dated 10 August 2021, the district council agreed to treat the claimant as having requested a review of that banding. The outcome of that review was the ‘Decision Letter’ dated 13 October 2021, which informed the claimant that she would meet the criteria for Band C7 (a sub-category within Band C). It stated:

"Other unsatisfactory housing conditions (eg those with no fixed address, living with family or friends, lacking or sharing facilities, disrepair that cannot be easily remedied."

The Decision Letter also referred to a medical report and stated that: "From the information provided there is no clear evidence that the housing conditions are having any adverse effect on the applicant's medical conditions, therefore no medical priority applies."

The Decision Letter concluded as follows: "I would like to point out that under the qualification criteria (section 3.3.3) of the Register of Housing Need and Choice Based Lettings Policy, people who have not lived or worked in the area on a continuous basis for the last two years, but have a local connection to the area and an overriding need to move to the area will only be assessed as a band C or D. Your address history on your application form states that you were living at [tenancy address] up until 07/04/2021. I do however, believe that you should remain on the Housing Register … as you had to leave your accommodation.... due to an abusive partner and you feel that it is not safe for you to return to this property."

The claimant submitted that she was unable to satisfy the two-year residence rule in 3.3.3(a) and only fell for inclusion in the scheme via paragraph 3.3.3(d).

Judge Obi noted in her analysis that put simply, the claimant's case was that:

1. the defendant's allocation policy amounts to a PCP [provision, criterion, or practice];
2. the claimant has the protected characteristic of sex;
3. paragraph 3.3.3(d) of the defendant's allocation policy puts women fleeing domestic abuse at a particular disadvantage when compared with men, as women are overwhelmingly more likely to be the victim of domestic abuse, and have to move to another area as a result;
4. the disadvantage cannot be justified, and in any event, no evidence of justification has been provided.

The judge added: “Therefore, it is submitted that the decision to limit the Claimant to Band C or D, indirectly discriminates against her in breach of section 19 of the 2010 Act, having regard to her protected characteristic of sex.”

In the alternative, the claimant submitted that there was discrimination, in the Thlimmenos sense, because the policy “fails to acknowledge that some people, affected by the policy, may be in different situations.”

It was submitted that women fleeing domestic abuse, from a different local authority area, are discriminated against because they are treated the same as all other applicants who are not resident in the defendant's area.

The defendant’s submissions, outlined by the judge, were as follows:

• The claimant was a person who was not resident in its area and was (and still is) the tenant of a property in another local housing authority area. As such, the claimant was prima facie excluded from the housing register, by reason of paragraph 3.3.3(j) which Ms Rowlands [counsel for the local authority] submitted was "part of the whole operation of 3.3.3." However, the claimant was "included back into the register" by reason of section 3.3.3(d), but that provision expressly limited people coming from outside the defendant's area to Bands C and D. The reason for this was to ensure that housing in the defendant's area was allocated to those with the greatest connection to the district.
• The defendant accepted that the Decision Letter did not refer to paragraph 3.3.3(j) in terms. However, it was submitted that the Decision Letter did refer to the claimant's tenancy in the other local authority and she would inevitably be caught by that provision if the decision were to be retaken.
• The defendant further submitted that limiting the claimant to Band C was not discriminatory treatment that arises from her status. Her status as a victim of domestic abuse was the reason for her preferential treatment; i.e. being allowed onto the register. However, even if limiting the claimant to Band C was discriminatory by virtue of section 19 of the Equality Act 2010, or in the Thlimmenos sense, such discrimination would be proportionate and justified.

Judge Obi considered the Equality Act 2010 as the key legal framework for the case.

She noted: “The Equality Act 2010 prohibits discrimination against persons with prescribed protected characteristics. Discrimination may be direct, where a person is treated less favourably because of a protected characteristic, or indirect (as alleged in this case), where an apparently neutral provision, criterion, or practice (PCP) puts people who share a protected characteristic at a group disadvantage.”

The Equality Act 2010 provides (as far as is relevant) as follows:

19 Indirect discrimination

"(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.

(3) The relevant characteristics are –

…

sex

…

In her discussion of the question: ‘Does the Defendant's policy breach the Equality Act 2010?’ Judge Obi said: “I accept that paragraph 3.3.3(j) is part of the whole operation of paragraph 3.3.3. However, the Defendant's submission that the Claimant is prima facie excluded from the housing register, but then accepted onto the register as an exception, unnecessarily complicates the issue and does not work on the face of the policy itself. Put simply, paragraphs 3.3.3(d) and 3.3.3(f) allow applicants to qualify if they have a local connection and meet the additional criteria, whilst 3.3.3(j) confirms those who are excluded. Once an applicant qualifies, they are placed in one of the four bands.”

She continued: “A natural reading of the Decision Letter is that the Claimant had been accepted on the Defendant's register under 3.3.3(d) because it is not reasonable for her to occupy her tenancy in [the other local authority area]. The Decision Letter does not refer to 3.3.3(j). Nor is there any reference to the Claimant being excluded. As submitted by Mr Johnson, the Defendant's reliance on 3.3.3(j) bears the hallmarks of retrospective justification which is not supported by any evidence. However, even if the Claimant surrendered her tenancy, she would still fall within paragraph 3.3.3(d) and would remain limited to Band C and D. For these reasons, I am satisfied that the tenancy issue is irrelevant to the operation of paragraph 3.3.3(d) and does not advance this aspect of the Defendant's case.”

The judge noted that another of the arguments relied on by the defendant was that the claimant had been given ‘preferential treatment’ – in terms of being exempted from the residency requirement and had been allowed on to the register as an exception to the normal rule.

Judge Obi rejected this argument, accepting the submission made on behalf of the claimant that “advantage in some other respect, does not remedy indirect discrimination".

The judge noted that all allocation policies are unequal and as observed by Garnham J in R v XC Southwark [2017] EWHC 736 (Admin): “Every tweak to the scheme to benefit one individual or one class of applicant is likely to have an adverse effect on another….”

The judge concluded that at most, the 'advantage' argument “might go to justification".

She added: “In my judgment, it is perfectly plain that the effect of 3.3.3(d) is to indirectly discriminate against women fleeing to the Defendant's area, due to domestic abuse. Paragraph 3.3.3(d) appears to be a neutral provision, in that it applies to everyone, but women are put at a disadvantage when compared to men, as they are significantly more likely to be the victims of domestic abuse and, as a result, have to move to another area.

"The Claimant returned to live in the Defendant's area because she was fleeing domestic abuse from another local authority area. This leads to a particular disadvantage because the Claimant, notwithstanding that she is entitled to a reasonable preference because she is owed the main housing duty under section 193(2) of the Act, is limited to Bands C or D and therefore less likely to obtain an allocation of social housing. I am satisfied that the Claimant has established a sufficient causal link between her protected characteristic of sex and the application of the qualification criteria.”

She continued: “The Equality Act 2010 does not require the Claimant to show why paragraph 3.3.3(d) puts her at a particular disadvantage when compared with others; it is enough that there is a disadvantage. Nor is there any requirement for the Claimant to produce statistical evidence, or evidence of the actual effect of the PCP.”

The judge concluded that she was satisfied that the disadvantage of paragraph 3.3.3(d) to those fleeing domestic abuse was “obvious”, and it was “equally obvious that the effect of this provision is significantly more disadvantageous to women".

Her reasoning was as follows: “To the extent that it is suggested that paragraph 3.3.3(j) operates on the basis that the mere fact that the Claimant already has a tenancy, is a sound basis for reducing her reasonable preference, it is itself discriminatory. This is because it disadvantages those with a social housing tenancy, who have been compelled to flee that tenancy, as a result of domestic abuse. Once again, this puts women at a particular disadvantage when compared with men.”

The judge concluded that in the circumstances, the policy and its application to the claimant amounted to a breach of section 19(2) of the Equality Act 2010 by being indirectly discriminatory.

Judge Obi said it was for the defendant to show that the discriminatory PCP was justified as a proportionate means of achieving a legitimate aim.

She noted that although counsel for the local authority had strongly resisted the contention that the effect of paragraph 3.3.3(d) was discriminatory, a significant proportion of her submissions went to the issue of justification.

“She addressed the court with regards to the absence of a right to a house and "absolute access" to the scheme, the severe shortage of social housing in the Defendant's area, the Claimant's tenancy, and the power to include localism provisions to ensure that housing goes primarily to those with the greatest connection to the district.”

Counsel for the local authority had highlighted that as of 16 August 2022, on the defendant's register, there were 369 applicants for a one-bedroom property and in 2021-2022 only 13 such properties were let through the register, other than sheltered housing.

Counsel also submitted that the claimant's entitlement to a reasonable preference did not mean that she must have priority. To prioritise the claimant, would potentially have a huge impact on the other people on the waiting list for housing, she submitted. “In addition, the court should be slow to intervene as the Defendant is best placed to prioritise housing needs in its area.”

Judge Obi concluded, however, that no evidence was led to demonstrate that the defendant had specifically considered the effect of the reduction in banding on women fleeing domestic abuse and had conducted a proportionality exercise. She concluded that the PCP had not yet been justified.

She noted that the above conclusions were sufficient to resolve the claim in favour of the claimant. Judge Obi said that although the defendant council had not yet justified the indirect discrimination, it was still open to them to do so, by providing evidence that specifically addressed the impact of paragraph 3.3.3(d) on women fleeing domestic abuse or violence.

The decision made by the defendant on 13 October 2021 ('the Decision Letter') was quashed.

Lottie Winson