Case Law Article Highlights Indirect Discrimination in Housing Allocation Policy

Citation: [2023] EWHC 3083 (Admin)
Judgment on

Introduction

The judgment in the case of BN, R (on the application of) v London Borough of Hounslow [2023] EWHC 3083 (Admin), before FORDHAM J, presents a significant legal discourse on the application of equality principles within the context of local housing allocation policy. The court’s judgment serves to elucidate the responsibilities of local authorities under the Housing Act 1996 and the Equality Act 2010 and explores the interconnection with human rights considerations under the European Convention on Human Rights (ECHR).

Key Facts

This case revolved around the Claimant’s application to join the housing register of the London Borough of Hounslow and the subsequent refusal based on the Defendant’s Housing Allocation Policy. The Defendant’s policy required a five-year continuous local residence criterion for eligibility, which the Claimant, as a non-UK national refugee and a victim of gender-based non-domestic violence, failed to meet. The Claimant sought judicial review on the grounds that this policy indirectly discriminated against her based on her race and gender. Permission for judicial review was granted, and the Defendant later indicated a lack of intention to contest the claim.

Several pertinent legal principles emerge from this case. The key issues revolve around:

  1. Indirect Discrimination under the Equality Act 2010:

    • The principle of indirect discrimination, as articulated in sections 19 and 29 of the Equality Act 2010, played a critical role. The Defendant conceded that its Residence Criterion had led to indirect discrimination against the Claimant because of her status as a non-UK national and a victim of gender-based violence.
  2. Discrimination under the European Convention on Human Rights:

    • The case also implicated the Article 14 ECHR (prohibition of discrimination) read alongside Article 8 ECHR (right to respect for private and family life). The Defendant accepted that it discriminated against the Claimant in these aspects, which constitutes a violation of her rights under the ECHR.
  3. Public Sector Equality Duty:

    • Under section 149 EA 2010, the Defendant is tasked with the public sector equality duty. In this case, it acknowledged its failure to comply with this duty when introducing and maintaining the Residence Criterion.

Outcomes

The notable outcomes of the case include:

  1. Stay of Proceedings:

    • A stay has been granted in the proceedings with liberty to apply, and the substantive issues were not determined by the court.
  2. Costs:

    • The Defendant is ordered to pay the Claimant’s costs and provide a payment on account waiting for a detailed assessment if non-agreement is reached.
  3. Review and Amendment of the Housing Allocation Policy:

    • The Defendant agreed to review the Residence Criterion, especially in terms of its impact on non-UK nationals and individuals fleeing gender-based violence. The Defendant will notify the Claimant of the review outcome and present proposals for amendment to their executive.
  4. Disapplication of the Residence Criterion:

    • The Defendant will disapply the Residence Criterion immediately for non-UK nationals with refugee status and individuals fleeing gender-based violence, pending the completion of the review and any amendments.

Conclusion

The judgment in BN, R (on the application of) v London Borough of Hounslow establishes a clear directive for local authorities to avoid policies that could inadvertently lead to indirect discrimination under the Equality Act 2010 and contradict provisions of the ECHR. It underscores the necessity for authorities to rigorously assess the equality implications of their policies, specifically concerning housing allocation, to ensure they adhere to their public sector equality duties. Moreover, it demonstrates the courts’ commitment to safeguarding the rights of vulnerable groups within society, ensuring that measures and policies are equality-compliant and fair in their application and effects.

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