Begum, R (On the Application Of) v London Borough of Tower Hamlets

Factual and Procedural Background

This appeal arises from an application by the Appellant for housing assistance after becoming homeless. The Respondent, a local housing authority, accepted a duty under section 193 of the Housing Act 1996 to secure suitable accommodation for the Appellant. Initially, the Appellant was provided with unsuitable accommodation, an issue later resolved with suitable accommodation provided from August 2023 onwards.

The Appellant claimed indirect discrimination under section 19 of the Equality Act 2010, alleging that from October 2022 to August 2023 the Respondent applied a provision, criterion or practice ("PCP") in its system for allocating temporary accommodation, including a "transfer list," which resulted in unsuitable accommodation, disproportionately disadvantaging women with children compared to men with children. The Appellant also claimed a breach of the public sector equality duty under section 149 of the 2010 Act.

The High Court Deputy Judge dismissed the claims, holding that the database was not a PCP, did not put women at particular disadvantage, and if it did, it was justified as a proportionate means of achieving a legitimate aim. No breach of section 149 was found.

The Appellant appealed on six grounds challenging the identification and nature of the PCP, the alleged disadvantage to women, the causal link, justification of the PCP, and the section 149 duty compliance. Shelter was permitted to intervene on some grounds.

Procedurally, the Appellant initially sought judicial review challenging the Respondent's failure to provide suitable accommodation. Interim relief was granted requiring suitable accommodation by late August 2023, which was accepted by the Appellant, rendering the 1996 Act claim academic. The appeal focuses on the discrimination claims.

Legal Issues Presented

1. Whether the Respondent applied a provision, criterion or practice (PCP) in allocating temporary accommodation, specifically the use of a transfer list/database, that constitutes indirect discrimination under section 19 of the Equality Act 2010.
2. Whether such a PCP put women, particularly women with children, at a particular disadvantage compared to men.
3. If so, whether the Respondent has demonstrated that the PCP is a proportionate means of achieving a legitimate aim.
4. Whether the Respondent breached its public sector equality duty under section 149 of the Equality Act 2010 in exercising its functions during the relevant period.

Arguments of the Parties

Appellant's Arguments

• The PCP relied upon comprised two elements: operating a database (transfer list) for homeless applicants seeking transfers and providing some or all such applicants with unsuitable accommodation while on the list.
• The judge erred by identifying the PCP as merely the inclusion of information in a database, omitting the element of unsuitable accommodation.
• The operation of the transfer list and the resulting unsuitable accommodation disproportionately disadvantaged women with children compared to men.
• Statistical evidence was presented to show that a higher proportion of women with children were placed in unsuitable accommodation relative to men.
• The Respondent failed to comply with its duty under section 149 to have due regard to equality considerations.

Respondent's Arguments

• The database was a tool for efficient data management and did not constitute a PCP; it was used to record information to identify needs and match households to available accommodation.
• The transfer list was not a waiting list or a mechanism to delay provision of suitable accommodation but a practical aid to officers managing housing allocations.
• No evidence showed that homeless male applicants on the database had a greater chance of receiving suitable accommodation than female applicants; thus, no particular disadvantage to women was demonstrated.
• The Respondent complied with its public sector equality duty, having due regard to equality matters in exercising its functions.

Shelter's Arguments

• Intervened in relation to grounds concerning disadvantage to women, justification of the PCP, and section 149 duty.
• Submitted that the issue of discrimination only arises for those on the transfer list in unsuitable accommodation, as it is the state of being in unsuitable accommodation that constitutes the particular disadvantage, not the list itself.
• Argued that a higher proportion of women than men were placed at a particular disadvantage by being on the transfer list and remaining in unsuitable accommodation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by carefully defining the nature of a PCP under section 19 of the Equality Act 2010, guided by precedent emphasizing that a PCP must be a practice, provision, or criterion applied generally or repetitively, capable of putting persons sharing a protected characteristic at a particular disadvantage compared to others. The court found that the mere maintenance of a database for managing housing allocations was a tool for administrative efficiency rather than a PCP, as it did not itself differentiate between groups or cause disadvantage.

Assuming arguendo that the composite PCP included providing unsuitable accommodation while on the transfer list, the court examined the statistical evidence. The evidence did not support an inference that women, including single mothers, were disproportionately disadvantaged compared to men. The proportions of women and men in unsuitable accommodation relative to their proportions in temporary accommodation were broadly consistent, and no causal link was established between the database's operation and the alleged disadvantage.

The court accepted the Respondent's evidence that the database was not a waiting list and did not delay the provision of suitable accommodation but was a practical aid to comply with statutory duties amid a housing crisis.

Regarding the public sector equality duty under section 149, the court found that the Respondent had due regard to equality considerations in exercising its functions. The duty requires consideration, not achievement of specific outcomes, and the Respondent's actions, including recognizing the Appellant's needs and seeking suitable accommodation, satisfied this obligation. The issue was also academic given the provision of suitable accommodation by the time of the appeal.

Holding and Implications

The court DISMISSED the appeal.

The holding confirms that the Respondent did not apply a PCP that indirectly discriminated against women under section 19 of the Equality Act 2010, and there was no breach of the public sector equality duty under section 149. The decision clarifies that administrative tools such as databases for managing housing allocations do not, by themselves, constitute PCPs. The statistical evidence must support an inference of particular disadvantage for indirect discrimination claims to succeed. The ruling has no broader precedential effect beyond the parties, as the discrimination claim was not established and the equality duty issue was academic.