RR v Enfield [2025] EWCA Civ 1390: No Freestanding PSED Monitoring Duty and a Rigorous Evidential Threshold for Indirect Disability Discrimination in Social-Housing Allocations

Introduction

This Court of Appeal decision addresses how local housing authorities must operate social-housing allocation schemes under Part VI of the Housing Act 1996 when faced with Equality Act 2010 challenges alleging disability discrimination. The case also clarifies the scope of the public sector equality duty (PSED) under section 149 of the Equality Act, the burden-of-proof regime in section 136, and the application of the “highly likely” no substantial difference test under section 31(2A) of the Senior Courts Act 1981.

The appellant (RR) is a homeless applicant owed the main housing duty under section 193(2) of the 1996 Act. He challenged Enfield’s allocation scheme because it awards 200 points to homeless applicants but excludes them from additional “low” or “medium” Health and Wellbeing points (50 or 150) available to other applicants. He alleged this provision, criterion or practice (PCP) indirectly discriminated against homeless households with a disabled member, and that Enfield failed to make reasonable adjustments and to comply with the PSED. At first instance, HHJ Walden‑Smith dismissed the section 19 and section 20 claims, found a breach of section 149 for failure to monitor/record disability data but refused a remedy under section 31(2A).

On appeal, the core questions were:

Was the appeal academic because the scheme had changed and RR had a private-sector tenancy?
Did RR establish a section 19 indirect discrimination claim, applying section 136’s burden of proof?
Should additional evidence (APPG/Shelter reports; FOI response; later BBC and Ombudsman materials) have been admitted?
Was there a breach of the section 20 reasonable adjustments duty?
Was there a breach of the PSED and, if so, should relief be refused under section 31(2A)?

Summary of the Judgment

Appeal not academic: a live controversy persisted due to RR’s pending suitability review under section 202 and his pleaded Equality Act damages claim.
No indirect discrimination (Equality Act 2010, section 19): RR failed to adduce primary facts capable of showing that the PCP caused homeless households with a disabled member to wait longer for Part VI allocations than those without. General material about the quality or suitability of Part VII temporary accommodation could not fill that evidential gap. Exclusion of the APPG, Shelter and FOI evidence at first instance was upheld; permission to adduce the BBC/Ombudsman material on appeal was refused for want of relevance.
No breach of the duty to make reasonable adjustments (section 20): there was no evidence of substantial disadvantage attributable to the PCP; in any event, the suggested “adjustment” (granting extra priority outside the scheme) would be unreasonable because section 166A(14) requires allocations to be made in accordance with the lawful scheme.
No breach of the PSED (section 149): the judge erred in treating section 149 as creating a free‑standing duty to monitor or collect statistics. Section 149 is a duty to have due regard in the exercise of a function; it does not, of itself, impose a perpetual monitoring requirement. The review decision applied the lawful scheme and considered disability issues raised; there was no breach. Even if there were, relief would have been refused under section 31(2A).
Result: Appeal dismissed; respondent’s notice allowed; first instance finding of a section 149 breach set aside; all Equality Act grounds fail.

Analysis

1) Precedents Cited and Their Influence

Essop v Home Office [2017] UKSC 27; [2017] 1 WLR 1343: The Supreme Court’s framework for indirect discrimination requires (i) a PCP applied to all, (ii) a particular disadvantage to those sharing the protected characteristic, and (iii) a causal link between the PCP and the disadvantage. The Court of Appeal applied Essop to emphasise the need for group-level disadvantage and causation, not mere assertion.
Royal Mail Group Ltd v Efobi [2021] UKSC 33; [2021] 1 WLR 3863 (referred to in the judgment as “Ebofi”): Clarifies section 136’s two-stage approach to the burden of proof: the claimant must establish primary facts from which discrimination could be inferred absent an explanation. The Court of Appeal relied on this to hold RR’s evidence insufficient to shift the burden.
R (Imam) v Croydon LBC [2023] UKSC 45; [2025] AC 335 and Birmingham City Council v Ali [2009] 1 WLR 1506: Reaffirm the separation and interaction of Parts VI and VII of the 1996 Act—the main duty under Part VII is separate from, though can terminate upon, an allocation under Part VI. This framed the Court’s insistence that evidence about suitability of Part VII accommodation did not prove discriminatory outcomes in Part VI allocations.
R (Ward) v Hillingdon LBC [2019] EWCA Civ 692; [2019] PTSR 1738: The Court of Appeal explained the PSED requires “due regard” in the exercise of the relevant function, sometimes necessitating adequate inquiry. Ward shows a policymaker may need to gather information when adopting/amending policy; but it does not create a perpetual monitoring obligation. The present Court used Ward to demarcate the scope of the duty.
R (DXK) v Secretary of State for the Home Department [2024] EWHC 579 (Admin), [2024] 4 WLR 46 and R (DMA) v Secretary of State for the Home Department [2020] EWHC 3416 (Admin), [2021] 1 WLR 2374: In those asylum-accommodation cases, the PSED findings were tied to the Secretary of State’s operational duty to ensure contractors delivered accommodation lawfully and without systemic disadvantage to disabled people. The present Court distinguished those contexts: they do not stand for a general, freestanding monitoring duty under section 149 in all settings.
R (Bradbury) v Brecon Beacons NPA [2025] EWCA Civ 489; [2025] 4 WLR 58 and R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA Civ 488; [2025] 2 P & C.R. 16: These recent Court of Appeal authorities explain how to apply section 31(2A) SCA 1981: assess the impact of the public law error on the outcome of the impugned decision. The Court applied that approach, indicating that even if a PSED breach had existed, it would not have affected the review decision applying the lawful allocation scheme.

2) The Court’s Legal Reasoning

(a) Not academic

Despite a post-issue private-sector tenancy offer and a later amendment to Enfield’s scheme, the Court declined to treat the appeal as academic. A section 202 suitability review remained pending; depending on its outcome, the section 193(2) duty could continue. RR had also pleaded Equality Act damages. These live issues justified adjudication.

(b) Indirect discrimination (section 19) and section 136 burden

The identified PCP was the scheme rule excluding applicants with homelessness points from obtaining additional low/medium Health and Wellbeing points (50/150). For a section 19 claim, RR needed evidence that, because of this PCP, homeless households with a disabled member wait longer than homeless households without a disabled member for Part VI social-housing allocations.

The Court stressed two essential components:

Correct comparator pools and metric: The relevant comparison was between waiting times for Part VI allocations in two homeless cohorts: with a disabled member vs without. Evidence about the quality or suitability of Part VII accommodation did not answer that question.
Primary facts and causation (sections 19 and 136): It was RR’s burden to adduce facts from which the Court could infer (absent explanation) that the PCP caused the alleged longer waits. That required data or evidence on waiting times and allocation outcomes tied to the PCP. RR provided none.

The reports (APPG, Shelter), FOI response, and the late BBC/Ombudsman materials were all about problems within Part VII temporary accommodation (e.g., unsuitability, accessibility, adverse health impacts). They did not show that the PCP lengthened Part VI waiting times for disabled homeless households relative to non-disabled ones. The Court also observed that any delays appeared likely attributable to the shortage of suitable stock, not to the PCP. On that basis, the indirect discrimination claim failed.

(c) Evidence rulings

The Court upheld the first instance decision to exclude the APPG report, Shelter report and FOI response, and refused the application to adduce the later BBC/Ombudsman materials. The touchstone was relevance to the identified comparator and causation issue. Evidence of poor conditions under Part VII was simply not probative of Part VI allocation waiting times or the PCP’s causal role.

(d) Reasonable adjustments (section 20)

The section 20 claim also failed. First, like the section 19 claim, it lacked primary facts demonstrating that the PCP put disabled persons at a substantial disadvantage as compared with non-disabled persons. Second, and decisively, the “adjustment” sought—granting extra points to homeless households with disability—would require departing from the lawful allocation scheme. Section 166A(14) of the 1996 Act mandates that allocations must be in accordance with the scheme; it would not be reasonable to override those priorities under the guise of a reasonable adjustment. The Court endorsed the judge’s view that the adjustment would run counter to the scheme design.

(e) Public sector equality duty (section 149)

The Court corrected the first instance approach. Section 149 does not impose a freestanding duty to monitor or collect statistics. Rather, it requires the decision-maker to have due regard to the needs in section 149(1) when exercising a specific function. In this case:

When adopting the scheme, Enfield undertook an equality impact assessment. The lawfulness of the scheme was not impugned on PSED grounds.
When conducting the review decision (23 May 2023), Enfield applied the scheme and considered the disability issues raised. There was no failure to have due regard in that decision-making function.

The Court distinguished DXK and DMA, where monitoring failures undermined the Secretary of State’s ability to ensure contractors complied with a live legal duty to provide accommodation without disadvantaging disabled claimants. Those cases do not establish a general “monitoring duty” under section 149.

Even if there had been a PSED breach, the Court would have refused relief under section 31(2A) because it was highly likely the outcome (the review decision applying the fixed scheme criteria) would not have been substantially different. Any lack of data could be relevant to future policy review, but not to this review decision’s application of the existing scheme.

3) Impact and Implications

(a) For local housing authorities

No freestanding monitoring duty under PSED: Authorities are not legally required by section 149 to continually monitor or collect statistics in the abstract. The duty is to have due regard when exercising a particular function (e.g., adopting/amending a scheme; deciding individual cases). Good practice may include monitoring (as EHRC guidance often encourages), but it is not itself a legal requirement absent the context of the function being exercised.
When adopting or amending a scheme: Authorities should ensure they are sufficiently informed to discharge the PSED (per Ward). Targeted data-gathering may be necessary if a potential disparity has been flagged.
Scheme compliance is paramount: Section 166A(14) requires allocations to be made in accordance with the scheme. Attempts to re-prioritise particular individuals outside the scheme (framed as “reasonable adjustments”) will usually be unreasonable.
Documented reasoning in individual decisions: Where disability issues are raised, record how they were considered within the scheme’s framework (e.g., high Health and Wellbeing priority, direct offers for adapted stock, ground-floor prioritisation).

(b) For claimants and advisers

Evidence is critical to section 19 and section 20 claims: To clear the section 136 threshold, gather primary facts showing the PCP’s group-level impact and causation. In the housing allocation context, that typically means:
- Data on waiting times to Part VI allocation for homeless cohorts with and without a disabled household member;
- Data on the availability and turnover of accessible/adapted properties relevant to the cohorts;
- Analysis tying any differential waiting time to the PCP (e.g., the exclusion from low/medium Health and Wellbeing points), rather than to general stock shortages.
Generalised Part VII evidence will not suffice: Material about the quality or suitability of temporary accommodation (Part VII) does not prove a section 19 disadvantage in Part VI allocation outcomes. Tailor evidence to the precise comparator pools and outcomes alleged.
PSED challenges must be decision-specific: Identify the function being exercised (policy adoption/amendment or individual review) and show why, in that function, due regard was not had. Pointing to a lack of general monitoring, without more, is unlikely to succeed.
Reasonable adjustments limits: Proposals that contradict the scheme’s lawful prioritisation will generally be unreasonable. Consider instead whether the scheme is itself unlawful on public law or equality grounds, or whether the individual’s needs are captured by existing high-priority mechanisms (e.g., “high” Health and Wellbeing priority, direct lets for wheelchair-adapted units).
Litigation strategy: If the PCP is thought to have systemic effects, build a robust evidence base early: deploy targeted FOI requests seeking Part VI allocation and waiting time data disaggregated by disability status; seek disclosure; consider expert statistical analysis.

Complex Concepts Simplified

Part VI vs Part VII of the Housing Act 1996: Part VI governs how social housing is allocated under a published scheme (points/bands). Part VII governs homelessness duties (e.g., the main duty to secure suitable accommodation while homeless). Allocation of a Part VI tenancy generally ends the Part VII main duty.
PCP (Provision, Criterion or Practice): A rule or way of doing things that applies to everyone (or a defined class). A neutral PCP can still be indirectly discriminatory if it disproportionately disadvantages a protected group (e.g., disabled people).
Indirect discrimination (Equality Act 2010, section 19): Requires: (i) a PCP applied to all; (ii) group-level disadvantage for those with the protected characteristic; (iii) the individual claimant shares that disadvantage; and (iv) the PCP cannot be justified as a proportionate means of achieving a legitimate aim.
Burden of proof (section 136): The claimant must first show primary facts from which, in the absence of an explanation, discrimination could be inferred. Only then does the burden shift to the respondent to explain.
Reasonable adjustments (sections 20–21): A duty to take reasonable steps to avoid a substantial disadvantage caused by a PCP to a disabled person. However, an “adjustment” that contradicts a lawful statutory scheme of priorities will generally be unreasonable.
PSED (section 149): A duty to have due regard to equality needs when exercising functions. It is not a standalone, perpetual duty to monitor. Adequate inquiry may be required when adopting/amending policy or where a specific issue is flagged.
Section 31(2A) SCA 1981: The court must refuse relief if it is highly likely the outcome would not have been substantially different but for the public law error. The focus is on the impact of the error on the impugned decision.

Conclusion

RR v Enfield is a significant appellate clarification in the social-housing and equality law landscape. The Court of Appeal has:

Emphatically restated the evidential discipline demanded by section 136 in indirect discrimination claims: claimants must produce primary facts—here, data on Part VI allocation waiting times by disability status and a causal link to the challenged PCP.
Confirmed that the reasonable adjustments duty cannot be used to sidestep a lawful statutory allocation scheme; section 166A(14) requires allocations to follow the scheme.
Rejected the notion that section 149 creates a freestanding duty to monitor or collect statistics in the abstract. The PSED is a duty of due regard tied to the function being exercised, sometimes requiring inquiry (e.g., on policy adoption/amendment), but not imposing a perpetual monitoring obligation.
Illustrated the robust application of section 31(2A): even where a public law breach is argued, relief will be refused if it is highly likely the decision would have been the same.

For local authorities, the judgment supports the primacy of operating within a lawful allocation scheme, while still expecting equality considerations to be addressed in the proper function-specific context. For claimants, the message is clear: assemble precise, outcome-focused evidence that matches the comparator pools and demonstrates the PCP’s causal impact. Generalised accounts of poor temporary accommodation will not establish indirect discrimination in allocations.

In short, the decision advances doctrinal clarity on three fronts: the scope of PSED, the burden and type of proof needed for indirect discrimination under section 19, and the limits of the reasonable adjustments duty in the face of statutory allocation schemes. It will influence both the design of allocation schemes and the litigation strategies of those seeking to challenge them.