“2. Applicants who work or adhere to the rules in conducting their Council tenancy 20% of lettings will be made available to applicants from working households and those Council tenants who comply with their tenancy agreement and pay their rent and council tax. Working households will only qualify if they have been employed for a minimum of 24 hours a week and for 12 out of the last 18 months. Evidence of employment will be required in the form of tax returns, copy of employment contract and/or any other suitable proof as requested. Ealing Council has a scheme which rewards good tenants who want the opportunity to seek a transfer. These transfer applicants are existing tenants who have demonstrated that they are “model” tenants by complying with their tenancy agreement for a specified period of time. In order to bid successfully for properties advertised as part of this scheme, Households:- a) Must not have rent arrears for the previous 12 months. b) Must not have breached their tenancy conditions for the previous two years. c) Must not have any anti-social behaviour record. Once tenants have been accepted for the scheme they must continue to comply with the above criteria until they are rehoused in order to remain with the scheme. Applications will be prioritised by band and date within that band…”
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status.”
“51 I accept [counsel for the Secretary of State’s] submission that it is necessary to look at the policies in the round and not simply focus on the increase in fees set down in the regulations. There can be no doubt that a steep increase in fees alone would discourage many from going to university and would in particular be likely to have a disproportionate impact on the poorer sections of the community. 52 However, the availability of loans mitigates that effect. Further, given the existence of the various measures which are directed specifically at increasing university access to poorer students, I do not think that at this stage it is sufficiently clear that as a group they will be disadvantaged under the new scheme.”
“39 In my view, regulation B13, if read in isolation and without regard to the DHP scheme, plainly discriminates against those disabled persons who have a need for an additional bedroom by reason of their disability as compared with otherwise comparable non-disabled persons who do not have such a need. …” “40 But it is not realistic to confine the inquiry to regulation B13. That is because the Secretary of State has made it clear all along that this regulation is part of a package for dealing with the problem of under-occupation. He has recognised that there are some persons who should not be subjected to the percentage reductions in HB specified in regulation B13(4) . That recognition has found expression in (i) the inclusion in regulation B13 of certain exempted groups (children who cannot share a bedroom, persons who require overnight care, foster carers and certain members of armed forces who are away on operations categories) and (ii) his reliance on the DHP scheme for payment to others to whom it may not be reasonable to apply the bedroom criteria. So the question is whether the scheme as a whole discriminates against disabled persons.”
“62. On the other hand, the argument that the Regulations [Benefit Cap (Housing Benefit) Regulations 2012 ] also result in differential treatment of women because of their effect on the victims of domestic violence has not in my opinion been established. … In so far as the argument was that women fleeing domestic violence may live in temporary accommodation rather than refuges, and may then be entitled to housing benefit in respect of both their original home and the temporary accommodation, that problem, which is inherently of a temporary nature, is capable of being addressed under the DHP Regulations [Discretionary Financial Assistance Regulations 2001 ] by the use of discretionary housing payments; and the funding made available by Government for such payments has been increased for that very purpose. … It cannot therefore be said that the Regulations have a disparate impact on victims of domestic violence.”
“99 I should summarise in my own words what I understand to be the gist of that reasoning. The PCP relied on in variant (2) is, again, the provision of the Fees Order that claimants bringing type B claims must pay the higher level of fee. That “disadvantages” all type B claimants, but it is said to particularly disadvantage women because more women than men bring discrimination claims. Elias LJ’s point is that that is not the relevant disproportion: the only relevant disproportion would be between women and men bringing type B claims, since that is the group suffering the disadvantage. Type B claims are not of course limited to discrimination claims: most significantly, they also include claims of unfair dismissal. No gender disproportion is alleged as regards the group as a whole, and accordingly the higher level of fee cannot be said to particularly disadvantage women.”
“27 … there is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage. The later definitions cannot have restricted the original definitions, which referred to the proportion who could, or could not, meet the requirement. Obviously, some women are taller or stronger than some men and can meet a height or strength requirement that many women could not. Some women can work full time without difficulty whereas others cannot. Yet these are paradigm examples of a PCP which may be indirectly discriminatory.” “32. … the test [viz that the individual claimant has the same disadvantage that the group, to which he belongs, is or would be put] may in any event be justified despite its disparate impact. Although justification is aimed at the impact of the PCP on the group as a whole rather than at the impact upon the individual, … the less the disadvantage suffered by the group as a whole, the easier it is likely to be to justify the PCP.”
“14 … the current formulation of the concept of indirect discrimination … is now also to be found in theEquality Act 2010 . Previous formulations [of the concept of indirect discrimination] relied upon disparate impact—so that if there was a significant disparity in the proportion of men affected by a requirement who could comply with it and the proportion of women who could do so, then that constituted indirect discrimination. But … the new formulation was not intended to make it more difficult to establish indirect discrimination: quite the reverse (see the helpful account of Sir Bob Hepple in Equality: The New Legal Framework (2011) pp 64–68). It was intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply and those who could not and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages”
“74. … The approach [to proportionality] adopted in [R vOakes[1986] 1 SCR 103 ] can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. … In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure. 75. In relation to the third of these criteria, Dickson CJ made clear in R v Edwards Books and Art Ltd[1986] 2 SCR 713 , 781–782 that the limitation of the protected right must be one that ‘it was reasonable for the legislature to impose’, and that the courts were ‘not called on to substitute judicial opinions for legislative ones as to the place at which to draw a precise line’. This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J once observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois State Board of Elections v Socialist Workers Party (1979) 440 US 173 , 188–189); especially, one might add, if he is unaware of the relevant practicalities and indifferent to considerations of cost. …”
“The court is in no position to rewrite the whole policy and to weigh the claims of the multitude who are not before the court against the claims of the few who are.”
“46 … as a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies. Of course, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, it seems unlikely that the legislature can have intended that judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge.”
“The first and main aim of the 20% Priority Groups was to reward and incentivise households who work and who comply with the terms of their Council tenancies to a high standard. The second aim was to achieve this by setting clear rules which are simple for applicants to understand and for officers to apply and so do not lead to an excessive administrative burden on the Council’s already stretched resources.”
“However, the position of some households within these groups would undoubtedly be better if the WHPS did not exist. In that case, the allocations policy would do more to advance equality of opportunity and it can be said that the working household priority provisions fail to do this.”
“It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol … , to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for.”
“150 It is true that Lord Bingham's language in Clift's case reflects the ratio in that case but, in my judgment, the language of impairment, intrusion and infringement were used to show how closely related to the values protected by art.8 a measure has to be in the context of a substantive breach of art.8 and whether the matter is sufficiently close to the core values protected by art.8. If there is only a tenuous link to those core values that does not suffice. But in this case the measures in the 2004 and 2013 Acts are undoubtedly related to the core values of private and family life as shown by the Strasbourg jurisprudence which I have discussed. Accordingly, I do not consider that the domestic authorities can be regarded as requiring an additional requirement of concrete adverse impact other than deprivation of one of the means by which the State makes provision to recognise and protect those core values.”
“40. Having thus defined the scope of its examination, the Court begins by observing that there is no right underart.8 of the Convention to be provided with housing. However, as the Court has previously held with regard to other social benefits, where a contracting state decides to provide such benefits, it must do so in a way that is compliant with art.14. The impugned legislation in this case obviously affected the home and family life of the applicant and her son, as it impacted upon their eligibility for assistance in finding accommodation when they were threatened with homelessness. The Court therefore finds that the facts of this case fall within the ambit of art.8. In so finding, the Court notes the conclusion of the Court of Appeal at [25] of R (Morris) v Westminster City Council and further notes the fact that the Government agrees that art.8 applies to the instant case. The Court must therefore go on to consider whether the applicant was impermissibly discriminated against within the meaning of art.14.”
“29. … The link here is said to be home and family life. There is no enshrined right to a physical home; the right is to the enjoyment of a family life. However, this can, in reality, only be enjoyed in settled accommodation. Accordingly, I am satisfied there is a sufficient link.”
“21 The relevant underlying principles are as follows. First, the aim of the PSED (as of other equality duties) is to bring equality issues into the main-stream, so that they become an essential element in public decision making: see per Elias LJ in Hurley at [70], per Arden LJ in Elias at [274], and per Sedley LJ in BAPIO at [2]–[3]. In Bracking, at [59], McCombe LJ said: “It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.”
“It involves a conscious approach and state of mind.”
“The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory needs. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty as being performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed.” 23 Third, the concept of due regard is to be distinguished from a requirement to give the PSED considerations specific weight. It is not a duty to achieve a particular result: see per Dyson LJ in Baker at [31] and per Aikens LJ in Brown at [81]. In Hurley, Elias LJ said this at [78]: “The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker.”” “It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.” “It involves a conscious approach and state of mind.” “The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory needs. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty as being performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed.” “The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker.””
“… as Elias LJ said in the Hurley case [2012] HRLR 13 , paras 77–78 it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that “there has been a rigorous consideration of the duty”