Begum v London Borough of Tower Hamlets: When Does an Administrative “Transfer List” Become a PCP?
A Comprehensive Commentary on the Court of Appeal’s Clarification of Indirect Discrimination and Housing-Duty Compliance

1. Introduction

Begum, R (On the Application Of) v London Borough of Tower Hamlets [2025] EWCA Civ 1049 is a Court of Appeal (Civil Division) decision that scrutinises the intersection of homelessness duties under Part VII of the Housing Act 1996 (“HA 1996”) and indirect sex discrimination under ss.19 and 149 Equality Act 2010 (“EA 2010”). Mrs Anisa Begum, a single mother, alleged that the borough’s use of a “transfer list” to allocate alternative accommodation indirectly discriminated against women and breached the public-sector equality duty (“PSED”). The Court ultimately dismissed all six grounds of appeal, laying down clear guidance on:

• When (and when not) an administrative device amounts to a “provision, criterion or practice” (“PCP”);
• The evidential burden for demonstrating “particular disadvantage” by statistical inference; and
• The scope of the PSED in day-to-day housing allocation decisions.

Key Parties

• Appellant: Mrs Anisa Begum – homeless applicant, single mother of two.
• Respondent: London Borough of Tower Hamlets – local housing authority.
• Intervener: Shelter – focused on impact upon single-mother households.

Core Issues

1. Does operating a “transfer-list” database (and leaving some households in admitted unsuitable accommodation) amount to a PCP under s.19 EA 2010?
2. If so, does it place women—particularly single mothers—at a “particular disadvantage” compared with men?
3. Can the authority justify the PCP as a proportionate means of achieving a legitimate aim?
4. Did the authority breach the PSED (s.149 EA 2010) in its handling of Mrs Begum’s case?

2. Summary of the Judgment

The Court of Appeal (Lewison, Cobb & Newey LJJ concurring) upheld the High Court’s dismissal of the claim:

• No PCP Identified: Maintaining a database/transfer-list is merely an information-management tool; it does not itself differentiate between groups, and adding a label “unsuitable accommodation” does not convert it into a PCP.
• No Particular Disadvantage Shown: The statistical evidence was insufficient, inconclusive, and failed to compare like with like. There was no demonstrated causal link between being on the database and remaining in unsuitable accommodation.
• Justification (obiter): Even if there were a PCP, it would be justified by the legitimate aim of efficiently matching limited housing stock to need.
• No PSED Breach: The authority had due regard to equality considerations; any alleged breach is now academic because suitable accommodation has been provided.

3. Analysis

3.1 Precedents Cited & Their Influence

• Ishola v TFL [2020] EWCA Civ 112 – Confirmed that a PCP must reflect a “state of affairs” applicable to more than a one-off act, and must be capable of applying to others. The Court relied heavily on Simler LJ’s exposition that a PCP must connote a practice giving rise to differential treatment.
• R (Elkundi) v Birmingham CC [2022] EWCA Civ 601 – Stressed that the s.193(2) HA 1996 duty is “immediate, non-deferrable and unqualified”. Tower Hamlets argued—and the Court accepted—that its transfer-list did not operate as an unlawful waiting-list in contravention of Elkundi.
• R (Imam) v Croydon [2025] AC 335 – Cited for the principle that courts may compel compliance with s.193 via mandatory orders but can withhold relief if practically impossible.
• Allonby v Accrington College [2001] ICR 1189 – Sedley LJ’s statement that the claimant must identify the PCP was used to reject attempts to reshape the appellant’s pleaded PCP at appeal stage.
• Hotak v Southwark LBC [2015] PTSR 1189, Baker & Bracking – Established PSED principles; the Court applied these to find compliance.
• R (O) v SSHD [2022] AC 255 – Emphasised contextual statutory construction; relied on for an integrated reading of s.19(1)–(2).
• Recent CA decision R (AY) v Vale of Glamorgan [2025] EWCA Civ 671 – Cited for declining to rule on academic PSED issues.

3.2 Legal Reasoning Explained

a) Defining the PCP

The Court rejected the appellant’s composite formulation (“operating a database and leaving applicants in unsuitable accommodation”) on two fronts:

1. Operating a database is. in substance, an administrative function and not a rule or criterion guiding who gets what.
2. Remaining in unsuitable accommodation arises from housing-stock shortage, not from the act of recording data. Therefore, the database neither causes nor constitutes the disadvantage.

b) Particular Disadvantage & Statistical Proof

The appellant relied on government “temporary-accommodation” statistics (April–June 2023) and the borough’s Info 1/Info 2 extracts. Lewison LJ dissected the figures:

• Percentages alone were misleading because categories (single-parent, two-parent, lone adult) were not comparable.
• The proportions of female and male single-parent households remained “broadly constant” from the general pool to the “unsuitable” subgroup – defeating the inference of disparate impact.
• Tiny sample sizes (e.g. only three lone adults in “Info 2 – unsuitable”) rendered conclusions statistically unsound.

c) Causation

Even if disadvantage existed, the appellant had to prove a link between the PCP and that disadvantage. Since homelessness duty breaches stemmed from supply constraints, not from a record-keeping tool, causation failed.

d) Justification (Obiter)

Assuming arguendo a discriminatory PCP, the Court accepted that:

1. Legitimate Aim: Efficiently matching scarce, fast-moving accommodation to applicants with differing needs.
2. Proportionality: The database was a rational and minimally intrusive means; it did not delay allocation but facilitated it, distinguishing the facts from Elkundi.

e) Public Sector Equality Duty

The Court emphasised that PSED is a process duty not a results mandate. Tower Hamlets’s records, transfer request noting overcrowding, and subsequent actions demonstrated due regard. As the accommodation issue was now resolved, further enquiry was moot.

3.3 Likely Impact of the Decision

• Local Housing Authorities: Can rely on well-designed administrative tools without fear of them being labelled PCPs, provided the tools do not themselves allocate resources unfairly.
• Equality Litigation: Raises the evidential bar for statistical claims: claimants must furnish granular like-for-like data and show causation, not merely correlation.
• Homelessness Law: Reinforces that the remedy for breach of s.193(2) HA 1996 is public-law enforcement (judicial review, mandatory orders) rather than equality damages unless discriminatory mechanisms are proven.
• PSED Compliance: Confirms that routine operational decisions, if informed by awareness of protected characteristics, will usually satisfy s.149 – litigants must show a concrete procedural lapse.

4. Complex Concepts Simplified

PCP (Provision, Criterion or Practice)

A rule, requirement, policy, or habitual way of doing things that applies (or would apply) to a group and is capable of causing group-based disadvantage. It is more than a one-off decision.

Indirect Discrimination (s.19 EA 2010)

Occurs where a neutral PCP puts people with a protected characteristic (e.g., sex) at a “particular disadvantage” compared with others, and the PCP cannot be objectively justified.

Particular Disadvantage

A real, measurable detriment experienced disproportionately by the protected group. Typically proven via statistics or clear qualitative evidence.

s.193(2) HA 1996 Duty (the “Main Duty”)

Once an applicant is homeless, eligible, in priority need, and not intentionally homeless, the authority must “secure that accommodation is available”. The duty is immediate and personal to the applicant.

Public Sector Equality Duty (PSED)

Requires public bodies to think consciously about how their decisions affect equality – but does not dictate outcomes.

Transfer List / Database

An internal spreadsheet/database used to track applicants needing moves – akin to a dynamic address book, not an allocation queue.

5. Conclusion

Begum v Tower Hamlets recalibrates the boundary between administrative convenience and discriminatory practice. Key takeaways include:

• Not every internal process counts as a PCP; claimants must pinpoint a differentiating rule or practice.
• Statistical evidence must be robust, relevant and comparative; broad national or aggregate figures will rarely suffice.
• Causation is crucial: the claimed PCP must be the mechanism producing the disadvantage.
• PSED challenges must identify a real procedural failing, not merely an unfavourable outcome.

For housing authorities, the case is reassuring, signalling judicial tolerance for pragmatic data tools when they are used to fulfil, rather than evade, statutory homelessness duties. For equality practitioners, it underscores the necessity of meticulous pleading, precise comparator groups, and credible data. Overall, the judgment strengthens doctrinal clarity around indirect discrimination while recognising the operational realities of an acute housing shortage.