Ward & Ors, R (on the application of) v The London Borough of Hillingdon & Ors

Factual and Procedural Background

The case concerns challenges to Company A's housing allocation policy, which generally requires a person to have lived continuously in the borough for at least 10 years to qualify for the housing register. Exceptions exist for unintentionally homeless persons who do not meet the residence requirement but are placed in a lower priority band (band D). Two challenges were brought against the lawfulness of this policy on grounds of indirect racial discrimination. One challenge, brought by a group of Irish Travellers, succeeded before Judge Supperstone, while the other, brought by a Kurdish refugee of Turkish nationality, failed before Judge Mostyn. Due to these conflicting decisions, permission to appeal was granted. The appeals focus on whether the 10-year residence requirement indirectly discriminates against protected racial groups and whether such discrimination can be justified.

Legal Issues Presented

1. Whether Company A's 10-year residence requirement in its housing allocation policy constitutes indirect racial discrimination under the Equality Act 2010.
2. Whether the alleged indirect discrimination can be justified as a proportionate means of achieving a legitimate aim.
3. Whether Company A complied with its public sector equality duty under section 149 of the Equality Act 2010 in formulating the policy.
4. Whether there was a breach of the duty under section 11(2) of the Children Act 2004 in considering the welfare of children affected by the policy.

Arguments of the Parties

Appellants' Arguments

• The 10-year residence requirement indirectly discriminates against Irish Travellers and non-UK nationals, including refugees, as these groups are disproportionately unable to meet the residence criterion.
• The policy fails to justify this indirect discrimination adequately, lacking sufficient evidence on the impact and necessity of the 10-year requirement.
• Company A breached its public sector equality duty by failing to consider adequately the impact of the policy on non-UK nationals and refugees, especially after the challenge by the Kurdish refugee.
• Company A failed to discharge its duty under section 11(2) of the Children Act 2004 by not considering the welfare of children of Irish Travellers when formulating the policy.
• The hardship and other "safety valve" provisions in the policy do not eliminate the disadvantage caused by the residence requirement.

Respondent's Arguments

• The 10-year residence requirement is a legitimate and lawful policy aimed at rewarding long-term residents and promoting stable communities.
• The policy does not directly discriminate and any indirect discrimination is justified as a proportionate means of achieving a legitimate aim.
• The policy contains exceptions and safety valves, including hardship panels and direct offers, which mitigate any discriminatory effects.
• Company A complied with the public sector equality duty by conducting equality impact assessments and considering relevant groups.
• It would be unlawful direct discrimination to introduce different residence requirements for protected groups such as Irish Travellers or non-UK nationals.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (TW) v London Borough of Hillingdon [2018] EWHC 1791 (Admin)	Recognition of indirect discrimination against Irish Travellers by the 10-year residence requirement.	Used as precedent to support finding of indirect discrimination in favour of Irish Travellers.
R (Gullu) v London Borough of Hillingdon [2018] EWHC 1937 (Admin)	Consideration of indirect discrimination claim by a Kurdish refugee under the residence requirement.	Initially rejected indirect discrimination claim; later overturned on appeal.
R (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438	Permitting housing authorities to place preference groups in different bands within allocation schemes.	Supported the legality of banding system used by Company A.
R (Lin) v Barnet LBC [2007] EWCA Civ 132	Allocation priorities do not guarantee housing due to supply-demand imbalance.	Confirmed that placement in lower bands affects chances but does not bar registration.
Essop v Home Office [2017] UKSC 27	Definition and application of indirect discrimination and protected characteristics.	Clarified that indirect discrimination requires showing a PCP causes disadvantage to a protected group, not every member.
R (H) v Ealing LBC [2017] EWCA Civ 1127	Approach to indirect discrimination and rejection of "policy as a whole" argument to negate PCP's discriminatory effect.	Held that discriminatory PCPs must be considered separately; safety valves relevant only to justification.
Orphanos v Queen Mary College [1985] AC 761	Residence requirements indirectly discriminate against non-UK nationals.	Supported recognition of indirect discrimination against non-UK nationals in residence-based policies.
R (Winder) v Sandwell MBC [2014] EWHC 2617 (Admin)	Residence requirement in council tax reduction scheme indirectly discriminated against non-UK nationals.	Confirmed that statistical evidence is not always necessary when indirect discrimination is obvious.
R (Ahmad) v Newham LBC [2009] UKHL 14	Judicial deference to housing authorities' policy choices unless unlawful or irrational.	Warned courts against over-interference in housing allocation policies.
R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16	Courts' duty to intervene if policy results in unjustified discrimination, even in social and economic policy areas.	Emphasized constitutional role of courts in protecting against unlawful discrimination.
R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293	Ex post facto justifications for policies are permissible but subject to scrutiny.	Allowed consideration of justifications not present at time of policy formulation.
Seldon v Clarkson Wright & Jakes [2012] UKSC 16	Framework for justification of indirect discrimination.	Applied in assessing proportionality of the impugned residence requirement.
R (A) v Secretary of State for Health [2017] UKSC 41	Application of "manifestly without reasonable foundation" test in discrimination cases.	Clarified limits of judicial deference in proportionality assessments.
Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345	Duty of inquiry under the public sector equality duty.	Highlighted need for decision-makers to be properly informed about protected groups.
R (Coll) v Secretary of State for Justice [2017] UKSC 40	Form of declaration for unlawful indirect discrimination.	Guided the court in framing the declaration regarding the policy's discriminatory effect.

Court's Reasoning and Analysis

The court examined whether the 10-year residence requirement constituted a provision, criterion or practice (PCP) that indirectly discriminated against protected racial groups, specifically Irish Travellers and non-UK nationals including refugees. It accepted the concession that the PCP was discriminatory, rejecting the approach of comparing individuals rather than groups. The court found that the residence requirement disproportionately disadvantages these groups compared to others.

The court analyzed the public sector equality duty (PSED) and concluded that while Company A was not required to consider every conceivable protected group at policy formulation, it should have considered non-UK nationals by the time of the 2016 assessment following the refugee's challenge. The failure to do so amounted to a breach of the PSED.

Regarding justification, the court applied the four-stage test from Bank Mellat v HM Treasury (No 2) and found that Company A failed to provide sufficient evidence to justify the indirect discrimination. The policy maker did not demonstrate how reducing the residence requirement would compromise the legitimate aim of rewarding long-term residents, nor did it address the scale of disadvantage suffered by the protected groups. The court also rejected reliance on "safety valves" within the policy as these did not eliminate the disadvantage.

On the duty under section 11(2) of the Children Act 2004, the court held that although the duty applies at the policy formulation stage, it is not breached by failing to consider every possible situation affecting children, especially without evidence of the number of affected children. The court disagreed with the prior declaration of breach in this respect.

Finally, the court noted that it is possible to mitigate discrimination lawfully by introducing special rules for refugees (who are not a protected group) or for persons with no fixed abode, potentially justifying any residual indirect discrimination.

Holding and Implications

The court held that Company A's housing allocation policy's 10-year residence requirement constitutes indirect discrimination against Irish Travellers and non-UK nationals, including refugees, which is unlawful unless justified. The policy has not yet been justified on the evidence provided.

The court declared that the policy breaches the public sector equality duty in failing to consider adequately the impact on non-UK nationals. However, it overturned the previous finding that there was a breach of the duty under section 11(2) of the Children Act 2004 at the policy formulation stage.

The appeal by the Kurdish refugee was allowed on the discrimination point, while Company A's appeal on the Children Act point was allowed. No new precedent was created beyond clarifying the application of indirect discrimination principles and the PSED in this context. The decision leaves open the possibility for Company A to justify the discrimination if further evidence is provided or to amend the policy to mitigate unlawful effects.