Precedents Cited

The judgment extensively referenced prior cases and statutory provisions to build its legal reasoning:

• R (Ahmad) v Newham LBC [2009] UKHL 14: Highlighted the judiciary's limited role in interfering with housing allocation policies unless they contravene statutory requirements or are irrational.
• Essop v Home Office [2017] UKSC 27: Provided critical insights into the nature of indirect discrimination, emphasizing the importance of group comparisons over individual analogues.
• R (H) v Ealing LBC [2017] EWCA Civ 1127: Demonstrated the necessity for policies to counterbalance discriminatory provisions with effective "safety valves".
• Orphanos v Queen Mary College [1985] AC 761: Established that residence requirements can constitute indirect discrimination against non-UK nationals.
• R (Winder) v Sandwell MBC [2014] EWHC 2617 (Admin): Affirmed that residence requirements disadvantage non-UK nationals more than UK nationals.

Legal Reasoning

The court delved into the definition of indirect discrimination under Section 19 of the Equality Act 2010. Indirect discrimination arises when a provision, criterion, or practice (PCP) appears neutral but disproportionately disadvantages a protected characteristic group.

In this case, the 10-year residence requirement serves as the PCP. The court established that such a criterion inherently disadvantages non-UK nationals and the Irish Travellers community more than other groups, as these communities are less likely to meet the extended residency period due to factors like mobility and refugee status.

The court criticized the lower judiciary for conflating individual analogues with group comparisons, a misstep that undermined the recognition of systemic disadvantages faced by protected groups. Furthermore, the appellate court emphasized that Hillingdon’s “safety valves” were insufficient to neutralize the discriminatory impact of the PCP.

Regarding justification, the court referenced the four-limbed test from Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, assessing the policy's objective, rational connection, necessity, and proportionality. It found that Hillingdon failed to adequately justify the discriminatory effects, especially given the absence of sufficient evidence or consideration of alternative measures.

Additionally, the court addressed the Public Sector Equality Duty, confirming that Hillingdon breached this duty by not adequately considering the impact on non-UK nationals and refugees during policy formulation.

Impact

This judgment has profound implications for housing allocation policies across England and Wales:

• Reaffirmation of Equality Act Protections: The decision underscores the stringent scrutiny housing authorities must apply to ensure their policies do not inadvertently discriminate against protected groups.
• Emphasis on Group Comparisons: Courts will prioritize group-based analyses over individual analogues when assessing indirect discrimination claims.
• Necessity of Robust Justifications: Public authorities must provide comprehensive justifications for policies that may have discriminatory impacts, adhering to the four-limbed test for justification.
• Duty to Conduct Thorough Equality Impact Assessments: Authorities are compelled to conduct exhaustive Equality Impact Assessments, ensuring all relevant protected groups are considered to mitigate inadvertent discrimination.
• Policy Reform and Monitoring: Housing councils may need to revisit and reform their allocation policies, incorporating more inclusive criteria and effective safeguards against discrimination.

Moreover, the case serves as a cautionary tale for public sector bodies to move beyond tokenistic measures, pushing for genuine inclusivity and fairness in policy formulation.

Indirect Discrimination

Definition: Indirect discrimination occurs when a seemingly neutral policy or practice disproportionately disadvantages a particular group sharing a protected characteristic, such as race, without a valid justification.

Example in Case: Hillingdon's 10-year residence requirement was neutral on its face but disproportionately affected non-UK nationals and Irish Travellers, making it a case of indirect racial discrimination.

Public Sector Equality Duty (PSED)

Definition: Under Section 149 of the Equality Act 2010, public authorities must actively work to eliminate discrimination, advance equality of opportunity, and foster good relations among different groups.

Application in Case: Hillingdon failed to adequately assess and address the impact of its housing policy on non-UK nationals and refugees, thereby breaching the PSED.

"Safety Valves" in Policy

Definition: "Safety valves" are provisions within a policy intended to mitigate or counterbalance any discriminatory effects of primary policy measures.

Example in Case: Hillingdon attempted to use Band D placements and hardship panels as safety valves to balance the discriminatory impact of the residence requirement. However, the court found these measures insufficient to neutralize the indirect discrimination.

Justification of Indirect Discrimination

Four-Limbed Test: To justify indirect discrimination, a policy must:

1. Serve a legitimate and important objective.
2. Be rationally connected to that objective.
3. Be necessary, meaning no less discriminatory alternative exists without compromising the objective.
4. Have a proportional balance between the benefits of achieving the objective and the detriments of the discrimination.

Application in Case: Hillingdon failed especially in steps three and four, as it did not convincingly argue that the 10-year requirement was necessary or proportionate, given its significant adverse impact on protected groups.