Structured and Anonymized Summary of the Opinion
Factual and Procedural Background
This appeal concerns the allocation of social housing by a local housing authority under Part VI of the Housing Act 1996. The Defendant (the local housing authority) adopted an allocation scheme using a points system. The scheme awarded 200 points to homeless applicants owed accommodation under section 193 of the 1996 Act and allowed additional health-and-wellbeing points of 50 (low) or 150 (medium) to applicants meeting those criteria, but expressly excluded applicants who were homeless under Part VII from receiving those additional 50 or 150 points (the provision, criterion or practice at issue, hereafter the PCP).
The Appellant (a person owed the section 193 duty and on the housing register) challenged the PCP on multiple grounds under the Equality Act 2010: that it amounted to unlawful indirect discrimination (section 19), that the Defendant failed to make reasonable adjustments (section 20), and that the Defendant breached the public sector equality duty (section 149) by failing to monitor and record statistics relating to disabled households. The judge below (Judge Walden-Smith) dismissed the claims under sections 19 and 20, excluded three pieces of evidence the Appellant sought to adduce, but found a breach of section 149 on the narrow ground of failure to monitor and record statistics. The judge refused relief under section 31(2A) of the Senior Courts Act 1981 on the basis that the outcome would not have been substantially different had monitoring occurred.
The Appellant obtained permission to appeal on four grounds challenging (i) exclusion of evidence and the related assessment of disparate impact, (ii) application of the burden and standard of proof under section 136 of the Equality Act 2010 in relation to the reasonable adjustments claim, (iii) the same burden/standard in relation to the indirect discrimination claim, and (iv) refusal of remedy for the section 149 breach (including the judge's approach to section 31(2A)). The Appellant also sought permission to adduce additional evidence. The Defendant filed a respondent's notice contesting the finding of a section 149 breach and applied to dismiss the appeal as academic because the allocation scheme was amended and the Appellant had taken a private-sector tenancy (with a pending suitability review).
Legal Issues Presented
- Whether the appeal is academic given the Appellant's acceptance of a private-sector tenancy and amendment of the allocation scheme.
- Whether the judge correctly concluded there was no unlawful indirect discrimination contrary to section 19 of the Equality Act 2010, having regard to section 136 (burden of proof).
- Whether (a) the judge was entitled to refuse to admit three items of evidence and (b) this Court should admit additional evidence now sought.
- Whether the judge correctly concluded there was no breach of the duty to make reasonable adjustments under section 20 of the Equality Act 2010 and whether the correct burden/standard under section 136 was applied.
- Whether the judge was wrong to find a breach of section 149 of the Equality Act 2010 (public sector equality duty) for failure to monitor and, if the breach stands, whether refusal of remedy under section 31(2A) of the Senior Courts Act 1981 was correct.
Arguments of the Parties
Appellant's Arguments
- The PCP (disallowing additional 50/150 health-and-wellbeing points to homeless applicants) indirectly discriminates against disabled people because homeless households containing a disabled member are put at particular disadvantage compared with homeless households without a disabled member; specifically they wait longer to be allocated social housing under Part VI.
- The Defendant cannot justify the PCP as a proportionate means of achieving a legitimate aim and has failed to make reasonable adjustments under section 20 by not awarding additional preference to disabled households who are homeless.
- The Defendant breached section 149 by failing to monitor and record statistics about disabled households owed the main housing duty, so decisions (including the Appellant's points award) were made without sufficient information to have 'due regard' to equality considerations.
- The judge erred in excluding three pieces of evidence that purportedly showed disadvantaged outcomes for disabled people in temporary accommodation and sought to rely on additional later evidence (a news report and an Ombudsman report) to support the inference required under section 136.
Defendant's Arguments
- The judge was correct to dismiss the section 19 and section 20 claims: the PCP is neutral on its face between disabled and non-disabled homeless households and there was no evidence that disabled households were disproportionately impacted or that the PCP caused the alleged disadvantage.
- The excluded evidence related to the quality of Part VII temporary accommodation and did not provide the required comparative facts (e.g., waiting-times comparison between disabled and non-disabled homeless households) necessary to draw an inference under section 136.
- The duty to make reasonable adjustments would not require departing from an allocation scheme that the authority lawfully adopted and must be assessed objectively; giving additional points would undermine the scheme and the statutory allocation framework under the Housing Act 1996.
- There was no free-standing duty to monitor under section 149; the Defendant had performed an equality impact assessment when adopting the scheme and took individual applicants' needs into account in reviews. Even if monitoring were relevant, the judge was correct to refuse relief under section 31(2A) because the review decision would not have been substantially different had monitoring occurred.
- The appeal is not academic because the Appellant's review of the private tenancy offer remains outstanding and the claim for damages for discrimination is live.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Case A v Company B [2023] UKSC 45 |
Interaction between Part VI (allocation) and Part VII (homelessness duties) of the Housing Act 1996. |
The court relied on an extract from this decision to note that Parts VI and VII are separate but interact; it helped explain how a Part VII duty sits alongside Part VI allocation rules. |
| Company C v Case B [2009] 1 WLR 1506 (Ali) |
Illustration that the Part VII duty to secure accommodation is distinct from Part VI allocation but interacts with it. |
Cited within the discussion of Part VI/Part VII interaction (as referenced in the Case A excerpt) to support the statutory interpretation of the housing duties. |
| Case C v Company D [2017] UKSC 27 (Essop) |
Principles on indirect discrimination and the need to show disadvantage to a group with a protected characteristic. |
Referenced when describing the elements necessary under section 19(2) and the requirement to show disproportionate impact and causal link between PCP and disadvantage. |
| Case D v Company E [2021] UKSC 33 (Ebofi) |
Burden of proof in discrimination claims: claimant must establish primary facts from which unlawful discrimination can be inferred. |
Used to explain the operation of section 136 and that the claimant must adduce primary facts from which a court could, absent an explanation, infer a contravention. |
| Case E v Company F [2024] EWHC 113 (Willott) |
Need for statistical or other evidence showing a greater proportion of disabled persons are disadvantaged to support indirect discrimination claims. |
Relied on by the judge below; this court noted Willott in assessing whether the excluded evidence would have assisted the Appellant to establish a prima facie case. |
| Company G v Case F [2009] EWCA Civ 1213 (Royal Bank of Scotland v Allen) |
Objective approach to whether an adjustment is reasonable (reasonable adjustments test). |
Applied by the judge when assessing whether the proposed adjustment (awarding additional priority to homeless disabled households) would be reasonable. |
| Case G v Company H [2024] EWHC 579 (DXK) |
Context where monitoring and data collection were required to ensure compliance with accommodation duties under different statutory scheme (context of contracted provision). |
Cited by the Appellant to support an argument that failure to monitor can breach section 149; the court distinguished DXK on its facts (contracted-out provision and need to check contractors). |
| Case K v Company H [2020] EWHC 3416 (DMA) |
Failure to collect and use data to ensure contractors complied with accommodation duties could lead to a section 149 breach. |
Discussed as analogous context where monitoring was necessary because duties were discharged through contractors; the court explained these decisions do not create a free-standing duty to monitor in all contexts. |
| Case H v Company I [2020] EWCA Civ 214 (R (Plan B Earth) v Secretary of State for Transport) |
Approach to assessing whether an error affected the outcome (i.e., whether the outcome would have been substantially different). |
Cited by the Appellant on the correct approach to deciding whether a breach of the public sector equality duty would have changed the outcome; the court considered it in discussing section 31(2A) analysis. |
| Case I v Company J [2024] EWHC 769 (R (AK) v Westminster City Council) |
Example of approach to remedy where public sector equality duty errors are alleged. |
Referenced by the Appellant as a supporting authority on remedy analysis; the court treated it as an example but distinguished the factual matrix here. |
| Case J v Company K [2019] EWCA Civ 692 (R (Ward) v Hillingdon LBC) |
Recognised that policy-makers may need to gather information about protected groups when adopting or amending allocation schemes. |
Used to illustrate circumstances when monitoring or inquiry is required (e.g., when an amendment raises new issues); court contrasted that situation with the present facts where the scheme was lawfully adopted after an equality impact assessment. |
| Case L v Company L [2025] EWCA Civ 489 (R (Bradbury) v Brecon Beacons NP) |
Guidance on applying section 31(2A) (whether outcome would have been substantially different). |
Referenced when explaining the proper evaluative approach to whether the breach of duty (if any) affected the decision under challenge. |
| Case M v Company M [2025] EWCA 488 (R (Greenfields (IOW) Ltd) v Isle of Wight Council) |
Further guidance on section 31(2A) and assessing the significance of an error on decision-making. |
Used alongside Case L to explain how to assess the impact of a public law error on the outcome. |
| Case N (Ahmed) [citation not provided in full] |
Cited for the proposition that allocation policy choices are matters for the local authority to determine. |
Relied on by the judge to support the conclusion that providing additional priority as a reasonable adjustment would run counter to the policy decision vested in the local authority. |
Court's Reasoning and Analysis
The court proceeded issue by issue, applying statutory provisions (Housing Act 1996 Parts VI and VII, and the Equality Act 2010 sections 19, 20, 136 and 149) and relevant authorities.
1. Academic nature of the appeal: The court rejected the Defendant's submission that the appeal was academic. Although the allocation scheme had been amended and the Appellant had accepted a private-sector tenancy, the Appellant had a pending review under the 1996 Act concerning suitability of that tenancy; the outcome of that review (and any appeal) could affect whether the Part VII duty continued and the Appellant's position on the register. The Appellant's damages claim under the Equality Act also remained live.
2. Indirect discrimination (section 19) and admissibility of evidence: The court identified the PCP as the scheme provision excluding homeless applicants from the 50/150 health-and-wellbeing additional points. To succeed the Appellant had to show the PCP (a) is applied to a group with the protected characteristic (disability) in comparison with those without it, (b) puts that group at a particular disadvantage, (c) puts the Appellant at that disadvantage, and (d) cannot be shown to be a proportionate means of achieving a legitimate aim. The court emphasised that the PCP is neutral on its face between disabled and non-disabled homeless households, and that the Appellant's pleaded particular disadvantage was that homeless households with disabled members wait longer before allocation of Part VI social housing.
Critically, the court examined the evidence before the judge below and the additional material the Appellant sought to adduce. It held the excluded materials (reports and a freedom of information response) concerned the quality and suitability of Part VII temporary accommodation rather than the comparative waiting times for allocation under Part VI between disabled and non-disabled homeless households. The court stressed the claimant's burden under section 136: the claimant must establish primary facts from which, absent explanation, a contravention can be inferred (citing the relevant authorities). The excluded documents did not supply the necessary primary facts (for example, statistical evidence comparing the two cohorts or evidence of a causal link between the PCP and longer waiting times for disabled households). Accordingly the judge below was entitled to refuse to admit those documents and the court declined to admit the new evidence sought on appeal for the same reasons.
3. Causation and the PCP: Even if there were evidence that disabled homeless households spent longer in temporary accommodation, the Appellant also needed to demonstrate a causal link that the inability to obtain the additional 50/150 points caused the alleged longer waits. The court concluded there was no evidence to show that the PCP (the exclusion of low/medium health-and-wellbeing points for homeless applicants) was the cause of the alleged differential waiting times. The available evidence pointed to a borough-wide shortage of suitable properties rather than the points exclusion as the causal factor.
4. Reasonable adjustments (section 20): The court observed that the judge below did not determine whether the first requirement (that the PCP put disabled persons at a substantial disadvantage) was satisfied but instead proceeded on the hypothetical that it was, and then considered whether the adjustment sought (awarding additional priority to disabled homeless households) would be reasonable. Applying an objective test, the judge concluded such an adjustment would be unreasonable because it would conflict with the scheme that the local authority was lawfully entitled to adopt and because Part VII rights provide another route for resolving homelessness (including offers of suitable accommodation). The court agreed the judge was correct to refuse relief on this ground and to conclude the proposed adjustment was not reasonable.
5. Public sector equality duty (section 149): The judge below found a breach of section 149 limited to failure to monitor and record statistics about allocation outcomes for disabled households. The appellate court concluded this was an erroneous approach. Section 149 requires a public authority to have due regard to specified equality considerations when exercising particular functions. The court distinguished contexts where monitoring is essential (for example where duties are performed by contractors and the state needs data to ensure compliance) from routine cases where a properly adopted policy followed an equality impact assessment and where individual decisions considered equality matters. Here the allocation scheme had been adopted following an equality impact assessment and the reviewer had taken the Appellant's disability-related submissions into account. The court held there was no breach of section 149 by the Defendant in respect of the review decision under challenge. Even if there had been a breach, the court agreed with the judge below that section 31(2A) of the Senior Courts Act 1981 applied: the court must refuse relief if it is highly likely the outcome would not have been substantially different absent the breach. The court concluded the review decision applying the scheme would not have been different, and thus refusal of relief was justified.
Holding and Implications
Holding: The court dismissed the appeal and upheld the decision below. It concluded that the Defendant did not breach sections 19, 20 or 149 of the Equality Act 2010 in the way alleged by the Appellant; the judge was entitled to refuse admission of the contested evidence; and the court refused to admit the new evidence sought on appeal. The court also upheld the judge's refusal of a remedy under section 31(2A) had a breach of section 149 been established.
Implications:
- The immediate consequence is that the review decision awarding the Appellant 200 points under the allocation scheme and denying the additional 50/150 health-and-wellbeing points stands (subject to any ongoing review or appeal process the Appellant pursues regarding the suitability of his private tenancy).
- The court emphasised evidential requirements for indirect discrimination and reasonable adjustment claims: claimants must adduce primary facts (often statistical or comparable empirical evidence) from which an inference of disproportionate impact and causation can be drawn; general reports about the quality of temporary accommodation are insufficient to establish comparative waiting times or a causal effect of a PCP on allocation outcomes.
- The decision highlights the limited circumstances in which a failure to monitor will itself constitute a breach of the public sector equality duty: monitoring obligations arise in context and will be crucial where a public body discharges duties through intermediaries or contractors and lacks visibility over outcomes. By contrast, where a policy was adopted after an equality impact assessment and individual decision-makers considered equality issues, a failure to maintain broader monitoring data will not necessarily invalidate decisions taken consistently with the scheme.
- No new binding precedent was laid beyond application of established principles on indirect discrimination, reasonable adjustments, section 136 evidential requirements, and remedial discretion under section 31(2A); the decision applies those principles to the particular facts of an allocation scheme that lawfully excludes certain additional points for persons owed a Part VII duty.
Judges: The judgment was given by the panel comprising Judge Whipple and Judge Vos, with agreement recorded from the original judge below (Judge Walden-Smith).