12 March 2019 | Firm news | Article by Rebecca Rees
Two recent cases have looked at housing allocation and potential discrimination.
The Housing Act 1996 requires local housing authorities to have an allocation scheme which determines priorities in allocating housing. In formulating its allocations policy, it is lawful for a local housing authority to make provision for an applicant for housing to be given priority on the basis of a local connection.
At the same time, the Equality Act 2010 places obligations in relation to protected characteristics and in particular not to discriminate (directly or indirectly) in its provision of housing services. Protected characteristics include age, disability, race and religion or belief. Where there is the potential for discrimination it must be objectively justified.
Discrimination in allocation policy
R (TW) v Hillingdon Borough Council (HBC) (No 2)  EWHC 157 concerned Hillingdon’s allocation policy, which provided for a ten-year residence requirement, subject to a number of exceptions.
Two earlier challenges had reached the court in July 2018; in the first, a family of Irish Traveller descent argued (amongst other things) that the ten year residence qualification discriminated indirectly against them as Irish Travellers, given that they were much less likely than other groups to be able to meet the qualification. This challenge was successful – the court noted that in considering the policy, the council had not had regard to the impact of the policy on Irish Traveller groups, and had not sought input from Childrens’ Services or from the Homelessness Unit.
The second challenge was from a Kurdish person of Turkish nationality with refugee status. This time, the challenge was unsuccessful, on the basis the High Court held there was no discrimination (when comparing the applicant to someone from say, Yorkshire, who had approached Hillingdon on exactly the same basis, they would be treated in the same way). The court went on to comment that even if there had been discrimination, it was justified.
Following the July judgments, Hillingdon reviewed its policy. It retained the general rule but provided that the rule could be disapplied, if the applicant had a protected characteristic which made it difficult to comply with the rule.
The Irish Traveller family who pursued the first challenge asked the court to look at this again, contending that what Hillingdon had done was insufficient to deal with the illegality, which the court had identified in the first place. The court agreed, the data on which they based their review was old, they had no up-to-date information about the Irish Traveller population or how they might be affected by the policy (having taken information from census data, which aggregated the Irish traveller population with other groups). The council were not able to demonstrate that they had looked at relevant information about the population in question in order to properly assess the impact on that group and therefore, were unable to properly consider whether the policy, as drafted, which was potentially discriminatory, was justified.
The case is a useful demonstration of the sort of information which must be considered and assessed when looking at the impact of a potentially discriminatory policy.
Another allocation issue arose in R (Z) v (1) Hackney LBC (2) Agudas Israel HA  EWHC 139 (Admin). The Equality Act 2010 prohibits a service provider from refusing to provide a service for a discriminatory reason. Section 158 of the Act allows a service provider to take positive action, where persons of a particular group suffer a disadvantage compared to others.
The claimants were waiting for an allocation of housing from Hackney (H). H had a nominations agreement with the Agudas Israel Housing Association (AIHA), which was a charitable association, whose allocations policy prioritised those from the Orthodox Jewish community. Demand was significantly greater than supply and so the effect of the policy was that 100% of the lettings were to Orthodox Jewish applicants.
The claimants sought Judicial Review of the policy; the claim was dismissed. There was evidence that those from the Orthodox Jewish community faced real and substantial disadvantages, low-levels of home ownership, overt anti-Semitism and the likelihood that they would face prejudice in the private rented market. The evidence demonstrated that they had certain “needs”, which were different to people who were not from an Orthodox Jewish background. Section 158 was therefore engaged and this was the sort of positive discrimination, which it permitted. The policy was also a proportionate means of achieving a legitimate aim.
For more information on this topic or to speak to our Housing Management team, please contact 029 2267 5560.