XC, R (on the application of) v London Borough of Southwark [2017] EWHC 736 (Admin)

Case No CO/3981/2016[2017] EWHC 736 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/04/2017
Before
MR JUSTICE GARNHAM
Between
The Queen on the Application of XCClaimantLondon Borough of SouthwarkDefendant
Eleanor Sanders (instructed by Southwark Law Centre) for ClaimantChristopher Baker (instructed by London Borough Southwark) for DefendantHearing Hearing dates: 8 th March & 9 th March 2017
Judgment

Introduction

[1]By these judicial review proceedings, the Claimant, who is to be known by the initials “XC”, challenges the way in which the housing allocation scheme operated by Southwark London Borough Council was applied to her. The claim turns on the effect of the Equality Act 2010 on a scheme designed in accordance with Part VI of the Housing Act 1996.[2]The scheme, known as the “London Borough of Southwark Choice Based Lettings and Housing Allocation Scheme” is the Authority’s response to the requirement on local authorities under section 166A and Part VI of the Housing Act 1996, as amended by the Homelessness Act 2002 and the Localism Act 2011, to adopt a scheme to determine the allocation of its dwellings, giving reasonable preference to certain categories of people. Amongst other classes of people, the scheme gives additional preference to those with urgent housing needs, in accordance with section 166A of the 1996 Act, and to armed service personnel under regulations introduced in 2012.[3]The Claimant is a single, disabled woman who lives in accommodation she rents from the Authority in London SE15 (“the Flat”). She is unable, she says, to carry out paid employment or voluntary work because of her disability and because she has certain caring responsibilities for her adult son who lives elsewhere in Southwark. It is her case that the scheme unlawfully discriminates against her.[4]On the 6 September 2016 Kerr J gave the Claimant permission to apply for judicial review limited to the following grounds:
“(1) whether the defendant in breach of the Equality Act 2010 treated the claimant unfavourably as a result of something arising from her disability in the way in which it addressed her request to move, and by declining to move her out of Band 4;” (2) whether in breach of the 2010 Act the defendant, by operating the “priority star” element of the allocation policy, indirectly discriminated against disabled persons, including the claimant, who cannot work or volunteer by reason of disability; (3) whether in breach of the 2010 Act the defendant, by operating the “priority star” element of the allocation policy, indirectly discriminated against women, including the claimant, who cannot work or volunteer by reason of caring responsibilities undertaken by substantially more women than men.”
[5]The Claimant’s Counsel, Ms Eleanor Sanders, renewed her application for permission to apply for judicial review on other grounds at the commencement of this hearing. For reasons I gave orally at the time, which substantially reproduced the reasons of Kerr J and the responses of the Defendant, those applications were refused. Accordingly, argument in this case was directed to the three grounds for which Kerr J granted permission.[6]It is convenient to address those grounds of challenge in the order set out by Kerr J. But first, it is necessary to set out the relevant statutory provisions for housing allocation schemes and the relevant parts of the Equality Act 2010, and to summarise the relevant factual background.

The Statutory Schemes

[7]The Housing Act 1996 provides in Part VI for the allocation of housing accommodation. S166A and s169 provide (as is material):
“166A Allocation in accordance with allocation scheme: England (1) Every local housing authority in England must have a scheme (their “allocation scheme”) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. For this purpose “procedure” includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken. (2) The scheme must include a statement of the authority's policy on offering people who are to be allocated housing accommodation— (a) a choice of housing accommodation; or (b) the opportunity to express preferences about the housing accommodation to be allocated to them. (3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to— (a) people who are homeless (within the meaning of Part 7); (b) people who are owed a duty by any local housing authority under section 190(2) , 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3); (c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions; (d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); and (e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others). The scheme may also be framed so as to give additional preference to particular descriptions of people within one or more of paragraphs (a) to (e) (being descriptions of people with urgent housing needs). The scheme must be framed so as to give additional preference to a person with urgent housing needs who falls within one or more of paragraphs (a) to (e) and who – (i) is serving in the regular forces and is suffering from a serious injury, illness or disability which is attributable (wholly or partly) to the person's service, (ii) formerly served in the regular forces, (iii) has recently ceased, or will cease to be entitled, to reside in accommodation provided by the Ministry of Defence following the death of that person's spouse or civil partner who has served in the regular forces and whose death was attributable (wholly or partly) to that service, or (iv) is serving or has served in the reserve forces and is suffering from a serious injury, illness or disability which is attributable (wholly or partly) to the person's service. For this purpose “the regular forces” and “the reserve forces” have the meanings given by section 374 of the Armed Forces Act 2006. (4) People are to be disregarded for the purposes of subsection (3) if they would not have fallen within paragraph (a) or (b) of that subsection without the local housing authority having had regard to a restricted person (within the meaning of Part 7). (5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include— (a) the financial resources available to a person to meet his housing costs; (b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant; (c) any local connection (within the meaning of section 199) which exists between a person and the authority's district. (6) Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation— (a) to a person who makes a specific application for that accommodation; (b) to persons of a particular description (whether or not they are within subsection (3)). … (8) The Secretary of State may by regulations specify factors which a local housing authority in England must not take into account in allocating housing accommodation. (9) The scheme must be framed so as to secure that an applicant for an allocation of housing accommodation— ... (c) has the right to request a review of a decision mentioned in paragraph (b) …, and to be informed of the decision on the review and the grounds for it. (10) As regards the procedure to be followed, the scheme must be framed in accordance with such principles as the Secretary of State may prescribe by regulations. (11) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed. … (14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme. … 169.— Guidance to authorities by the Secretary of State. (1) In the exercise of their functions under this Part, local housing authorities shall have regard to such guidance as may from time to time be given by the Secretary of State. (2) The Secretary of State may give guidance generally or to specified descriptions of authorities.”
[8]The Equality Act 2010 provides (as is material):
“6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2) A reference to a disabled person is a reference to a person who has a disability. … 11 Sex In relation to the protected characteristic of sex— (a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; (b) a reference to persons who share a protected characteristic is a reference to persons of the same sex. … 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. … (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. … 15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. … 19 Indirect discrimination (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. (3) The relevant protected characteristics are— …disability;…sex; … 29 Provision of services, etc. (1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service. (2) A service-provider (A) must not, in providing the service, discriminate against a person (B)— (a) as to the terms on which A provides the service to B; (b) by terminating the provision of the service to B; (c) by subjecting B to any other detriment. … (6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation...”
In relation to the protected characteristic of sex— …disability;…sex; …

The Background

[9]To put this claim in its proper context, it is necessary to consider the following aspects of the somewhat complex background to this dispute:(i) The Claimant’s medical condition and her caring role;(ii) The history of relations between the parties;(iii) The complaint to the Ombudsman;(iv) The Housing Allocation Scheme;(v) The decision under challenge; and(vi) Disputed evidence.

(i) The Claimant’s medical condition and her care for her son

[10]The Claimant alleges that she suffers from multiple physical and mental health conditions. Her physical health problems are said to affect her mobility so that she cannot walk for more than ten to fifteen minutes without suffering extreme pain. In January 2014, Mr James Womersely, a physiotherapist, provided a provisional diagnosis of left hip pain secondary to possible impingement coupled with trochcanceric bersistis and perisformis syndrome. He says that “objectively she presents with a restricted range of movement in her left hip”. On 29 January 2014 a physiotherapist, Shefali Desai, indicated that the Claimant was continuing to struggle with her left hip. On 29 April 2014 the First Tier Tribunal of the Social Entitlement Chamber allowed an appeal by the Claimant on the basis that she required guidance and supervision when walking out of doors.[11]Pursuant to Schedule 1 Part 1 paragraph 5 of the 2010 Act, conditions which are managed by medication, as the Claimant’s back pain is, are included within the definition of disability if they would meet that definition but for the treatment. Pursuant to paragraph 2(1), her condition is “long-term” if it has lasted or is likely to last, longer than 12 months or for life. In the light of that provision and the evidence adduced by the Claimant, the Defendant accepts that the Claimant suffers some physical disability. They are right to do so.[12]The Claimant also alleges that she suffers from a number of mental health disabilities. The Defendant does not accept that that is the case. The Claimant relies on a letter dated 20 December 2012 from Dr Nigel Pearson, Consultant Psychiatrist at the South London and Maudsley NHS Trust. He gives her diagnosis as Asperger syndrome, with current depression and spider phobia. He says that she worked as a waitress after leaving school and has worked as a cabinet maker. He says that she last worked regularly nineteen years ago. She has not been able to work since the birth of her son. She told him that the problem with finding work is that “there is often no work available.” He recorded her as still doing “a lot of walking”. In concluding his letter Dr Pearson said that “on balance I thought she meets the criteria for Asperger syndrome. However the fact that she is able to make and keep friends and enjoys some forms of humour implies that she has a mild form of the disorder. She does not find therapy helpful and does not wish to have any psychotherapy at this stage.”[13]The Claimant refers to a letter from her G.P. dated 11 June 2014 which refers to her present problems being depression and a diagnosis of Asperger syndrome. A letter from a General Practitioner, Dr Maini, dated 4 December 2015, says that the Claimant developed intense panic attack type symptoms following abuse by a gang of youths. He says that she also has psychological problems with depression, Asperger syndrome and anorexia nervosa.[14]Dr Mani went on to support the Claimant’s application to move away from her flat so as to avoid the threatening environment in which she found herself. In a letter dated 8 February 2015, a member of the South London and Maudsley NHS Trust, Mr David Pennick, who describes himself as a member of the Assessment and Liaison Team but does not otherwise describe his qualifications, supported the Claimant’s application to move from her current property. He said that that property “is presenting her with ongoing stressors and is having an impact on her mental health……I would support this lady being placed in a higher banding then band 4…..I would base this on her presentation and her diagnosis of Asperger’s and anxiety and depression.”[15]The Claimant asserts in her witness statement that she has a twenty-one year old son. She says that he suffers from Asperger syndrome to a much more serious degree than she does. He also suffers from a cyclical mood disorder and can become violent when he does not take his medication. She says that, although she does not live with him, she is his carer and receives a carers allowance for him. She says he cannot look after himself and acts impulsively. He will telephone her in a panic and she has then to find a way of working out where he is and guiding him home. She says the only way he can live independently is if she looks after him at home. She says that her son can telephone her between fifteen and twenty times a day asking for help. (ii). The History of relations between the parties[16]The Claimant has been a tenant of the authority for many years. Between 25 October 1993 and 2 May 2011 she was a tenant of Flat 20 Beech House SE16 where she lived with her son. At the end of that period she and her son were transferred to 4 Birkdale Close SE16. Subsequently, her son moved into his own accommodation and as a result Birkdale Close became too large for the Claimant to live in alone. On the 14 October 2013, she was transferred to the Flat. That is a flat on the third floor of the premises.[17]The Claimant says she has two problems with her current accommodation. The first is its physical location. The second is noise coming from the flat above her.[18]The Claimant’s flat is served by a lift. If that is unavailable she has to negotiate three flights of stairs. She says that climbing the stairs worsens her existing hip problems. She says the lift frequently breaks down. There is a dispute between the parties as to the frequency with which the lift breaks down. The Claimant says that it can break down four times a week. But she acknowledges the record of lift breakdowns in 2015, as produced by the Defendant, shows that it broke down seventeen times in a ten month period.[19]Second, the Claimant alleges that the occupier of the flat above hers, who is also a tenant of the council, poses a significant noise nuisance by banging on the ceiling, playing music loudly at all times of the day and night and slamming doors. She complained to Southwark Council about noise coming from the flat above her. The neighbour made a cross-complaint about her. An attempt to arrange mediation was unsuccessful. The Authority investigated the Claimant’s complaints but, in view of a lack of evidence supporting her claim, took no action against the upstairs neighbour. The Claimant continued to make complaints to the Authority’s offices.[20]The Claimant asserts that those investigations have been inadequate and, more particularly, that the council has failed to stop the nuisance occurring. Dissatisfied with the council’s response, the Claimant made a complaint to the Local Government Ombudsman about Southwark Council’s response to her complaints. I summarise the results of that application below.[21]In July 2014, the Defendant had asked the Claimant to agree to use a single point of contact in her correspondence with the council. That arrangement was put in place because, it was said, the level of telephone, email and personal contact had been excessive “placing unreasonable demands on staff”. By letter dated 3 July 2015, the Authority informed the Claimant that, since that single point of contact arrangement was put in place the year previously, she had submitted 1670 reports concerning the Flat. They said that the overwhelming bulk of her complaints were directed at what she perceived as noise nuisance from that address. The letter explained that most of those complaints had not demonstrated a statutory noise nuisance. The Council indicated that it proposed taking no further action.[22]The letter went on to indicate that “the services have concluded that they will not be accepting any further diaries or noise reports from you in regards to this property”. The letter made clear that the Claimant had also raised issues of noise nuisance from other properties but said that those reports would be accepted. The letter continued that if there was a significant reduction in the level of contact the authority would consider ending the single point of contact agreement.[23]In July 2015, the Claimant applied for a further housing transfer. That application was considered in accordance with the scheme and a medical assessment was carried out. By a letter dated 5 October 2015, the Claimant’s priority was determined to be Band 4, the lowest of four bands set out in the scheme. The Claimant requested a review. By letter dated 26 November 2015 she was notified that there would be no change to the banding. She asked for a further review. The result of that further assessment was contained in the letter 5 January 2016, pursuant to which the Claimant remained assessed for Band 4. The Claimant then sought a further review, the result of which is the decision under challenge in these proceedings which is further discussed at paragraph 36 below.[24]On 10 December 2015, the Defendant’s investigation manager wrote to the Claimant indicating that after a review of her level of contact with the authority the single point of contact arrangement had been removed. By letter dated 6 January 2016 the Authority informed the Claimant that “if we continue to see a high level of phone calls and emails from you, we will be left with no choice but to limit your contact with Southwark. This could include restricting you to an officer and not responding to contacts from you if you are not raising new issues.” (iii). The Complaint to the Ombudsman[25]The complaint to the Local Government Ombudsman about Southwark Council’s response to her complaints was initially dismissed in a letter dated 9 October 2015. The Ombudsman produced his final report on the complaint on 12 January 2016. The Ombudsman summarised the Claimant’s complaint as a complaint that the Council’s Noise and Nuisance Team has “failed to take appropriate action to address the noise and nuisance you would expect to hear from the neighbour who lives above her.”[26]The Ombudsman’s analysis includes the following: “11. Since January 2014 (the Claimant) has made over 1,000 complaints about Mr X (the neighbour), contacting the Council by email and telephone repeatedly to complain about noise nuisance emanating from his property and disturbing her.12. While there is limited information on the action taken by the Council between January and March 2014, it is clear officers have spent considerable time and effort in investigating her complaints. Despite many visits, a statutory nuisance has only been witnessed on one occasion and the Council properly issued Mr X with a warning letter as a result. At other visits only a minimal sound could be heard by officials and at other times no sound could be heard at all. On a number of occasions there had been a clear difference between what Ms A had heard and what officers have heard despite listening at the same time. While Ms A may disagree with officer’s description of the limited level of noise on these occasions, the Ombudsman cannot dispute what they have heard or their description of it.13. Given the high level of contact from Ms A, I do not consider the Council’s decision to restrict her to a single point of contact to have been unreasonable. It carried out a detailed review of matters, producing the June 2015 Case Conference Report. It concluded, given the lack of evidence following extensive involvement from the Noise and Housing Team and Crime Concern and the Anti-Social Behaviour Unit, that the Council would not be pursuing any further action against Mr X or taking further reports from Ms A in relation to his address. Ms A may strongly disagree with this decision but the merits of it are not open to review by the Ombudsman”. (iv). The Housing Allocation Scheme[27]The relevant scheme for present purposes is the Authority’s allocation scheme of November 2013. The scheme contains an introduction which sets out its purpose, its scope, its objectives and the facility for applicants to obtain advice. The aims of the scheme are said, at paragraph 1.2.5, to include helping to “create sustainable communities” and its objectives, as set out at paragraph 1.3.1 include promoting “sustainable communities”, encouraging “residents to access employment and training”, recognising “residents who make a contribution to the local community” and ensuring as far as possible that “homes are allocated in such a way as to promote social cohesion and balanced and sustainable communities”.”[28]It then sets out the legal framework and the operation of the Housing Register which is described as a “choice based letting scheme called Homesearch”. Then, in section 4, it is explained how operation of the scheme will determine the relative priority that housing applicants are awarded.[29]The scheme explains that the Housing Act 1996 “requires that Reasonable Preference for housing must be given to those in the category set out in the Act”. It explains that statutory Reasonable Preference categories cover homeless people, people owed a particular duty under the homelessness legislation, people occupying unsatisfactory housing, people who need to move on medical or welfare grounds and people who need to move to avoid hardship. Then, at paragraph 4.2, the scheme describes how the authority determines priority between applicants with Reasonable Preference by taking into account various factors including their financial resources and “the contribution that an applicant makes to Southwark or their local community, for example if they are working or volunteering and whether the person has sufficient resources to rent privately or purchase property.”[30]In section 5 the policy explains the assessment process. It is explained that “an applicant’s circumstances are assessed and his/her application placed in either Band 1, Band 2, Band 3 or Band 4……Within each band priority is accorded by(1) a priority star system and(2) the date of registration.” One priority star is to be awarded for each of the statutory Reasonable Preference categories, for a working household and for applicants who are undertaking “a voluntary contribution”.[31]The reason why working households are afforded a priority is explained at 5.13.1 and following:
“5.13.1 The London Borough of Southwark wants to support the growth of its borough and encourage people to work and raise levels of aspiration and ambition. The London Borough of Southwark will therefore offer increased priority to applicants that are working and making a contribution to Southwark’s economy. The increased priority gained by being a working household will apply across the borough and is not linked to a specific area. 5.13.2 One priority star will be awarded in respect of being a working household. The allocation of any property would be subject to their eligibility for property size and type. 5.13.3 Applicants who are not in Band 1, Band 2, Band 3, or Band 4 but are in employment will not be qualified to join the Housing Register. The housing priority defines qualification to join the Housing Register, not the employment status.”
[32]A working household is defined as a household where at least one adult member is in employment. Applicants have to be working for sixteen hours or more per week for nine out of the previous 12 months.[33]Paragraph 5.16 explains how a ‘community contribution’ priority star can be achieved. That section provides as follows:
“5.16.1 People who play a part in making their neighbourhood strong, stable and healthy – those who help make it a good place to live, work and play – are valuable people. They are the backbone of their community, and they need to be recognised for the good they do. 5.16.2 The Community Contribution Priority Scheme is the London Borough of Southwark scheme which gives an applicant increased priority, in addition to any other Reasonable Preference they are entitled to because of housing need.”
[34]A community contribution is defined by section 5.18. An applicant has to show “a current positive local resident history” and show that he or she “have been volunteering for a continuous period of at least six months……..for a not-for-profit organisation or charity……..for a minimum of ten hours per month.”[35]Medical, welfare and disability preferences are explained at paragraph 5.20. Two classes of medical awards are available. First, a severe medical award which is made “where it can be demonstrated that due to an illness or disability, it is unacceptable for the applicant to remain in their current dwelling.” Moderate medical awards are made where it can be demonstrated that “due to an illness or disability the applicant finds living in their current dwelling difficult and it is clear that remaining in that dwelling will contribute to the deterioration in their health”.

(v) The decision under challenge

[36]The decision letter which is the primary subject of these proceedings was written by Mr Ricki Bellot, the Authority’s Housing Application Manager. He said that the Claimant’s application “has been assessed and been placed in the non-priority Band 4 category in accordance with our current allocation scheme.” The letter went on to indicate that the application had been referred to the Authority’s medical assessment service who had considered “the information contained within your file and the supporting information you provided to our office. Based on this information they concluded you do not have a medical requirement for move. Therefore your household is not a priority… The allocation of accommodation through our Homesearch bidding scheme is made through our bidding process where applicants are prioritised first by the priority band, the number of stars and then the length of time they have been placed in the priority band. Due to the high demand on social housing, applicants assessed within our non-priority Band 4 category will not be re-housed through our Homesearch bidding scheme. Therefore applicants registered in this band are advised to seek alternative re-housing solutions……… Having considered all the information on file and the information you have provided I can now advise I am satisfied your application has been assessed in the appropriate band in accordance with our allocation scheme in line with the relevant legislation”.[37]Two months later, Southwark Law Centre, acting on behalf of the Claimant, sent a pre-action protocol letter to the Defendant. That was supplemented by a further letter on 7 July 2016. The Authority responded by letter dated 27 July 2016. Like the pre-action protocol letter, that response addresses the matters which now call for decision in this case and it is not necessary for me to set those out here. However the Claimant alleges in her application for judicial review that that letter also constituted a decision capable of challenge in these proceedings. The following parts of that letter are material: “Paragraph 4.27 of the allocation of accommodation for local authorities urges local authorities to incentivise those who wish to work or otherwise contribute. An applicant only needs to contribute to the community for about 2.5 hours in a week. It is not an onerous requirement. It is obvious that your client gets out and about and if she really wants to, she can easily contribute 2.5 hours a week in the community without problems…… This is the third property to be occupied by your client. It appears that there is a pattern and every couple of years your client wants to move to an alternative property. She then proceeds to get different doctors to write letters supporting her requests to move. This is a huge waste of public resources because the local authority and the NHS have to utilise precious resources dealing with the repeated requests for a move to alternative accommodation. Her first tenancy……..was at Flat 20 Beech House……..your client trashed this property twice. It was repaired both times but then she insisted that she did not want to go back there after it was repaired the second time.” (vi). Disputed evidence[38]Judicial review proceedings are not the appropriate forum for resolving factual disputes, such as the number of times a lift has broken down. The correct approach to disputed evidence in judicial review proceedings is well established. It was summarised as follows by Silber J in R (on the application of McVey and others) v Secretary of State for Health [2010] EWHC 437 (Admin) at paragraph 35 :
“(i) the basic rule was that where there was a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants’ evidence had to be assumed to be correct; (ii) an exception to that rule arose where the documents showed that the defendant’s evidence could not be correct; and that (iii) the proper course for a claimant who wished to challenge the correctness of an important aspect of the defendant’s evidence relating to a factual matter on which the judge would have to make a critical factual finding was to apply to cross-examine the maker of the witness statement on which the defendant relied.”
[39]There was no application by the Claimant to cross examine the Defendant’s witnesses in the present case. In those circumstances, I work on the assumption that the Defendant’s evidence is correct, unless it has been established on the documents that that cannot be so. Thus, I accept the Defendant’s evidence on the number of times the lift broke down, noting that, unlike the Claimant’s evidence on the issue, it is supported by documentary evidence.[40]On the question of the Claimant’s mental disability, I accept the evidence of Dr Pearson that, in 2012, the Claimant met the diagnostic criteria for Asperger syndrome, although I note that she suffered only a mild form of that condition. The Defendant has advanced no convincing evidence to contrary effect. I accept the evidence of the other clinicians on whom the Claimant relies that that condition has persisted.

The Arguments

[41]I have the benefit of detailed written and oral arguments in this case from Ms Eleanor Sanders on behalf of the Claimant and Mr Christopher Baker for the Defendant. Their arguments are set out in detail in lengthy skeleton arguments which were expanded during a day and a half’s oral submissions.[42]I am grateful to both Counsel for their assistance. If I may, I would commend Ms Sanders in particular for her tenacious advocacy. No short summary would do those arguments justice and I address the issues that arise in the discussion section of this judgment. Discussion Ground 1 – Unfavourable treatment in response to the request to move

Discussion

[43]Ms Sanders contends that the Defendant’s response to her client’s letter before action, and its letters of 25 July 2015 “forbidding the claimant from providing any further evidence of noise nuisance” and of 8 January 2016 threatening “to limit the Claimant’s contact with the housing department”, arise from the Claimant’s disability and constitute unfavourable treatment.[44]Ms Sanders argues that the allegations made in the response to the letter before action were insulting and without proper foundation and that in the two letters the Defendant indicated an unfavourable attitude to the Claimant and unjustifiably sought to limit the Claimant’s contact with the Defendant. I have no hesitation in rejecting those allegations.[45]First, in my judgment the Claimant mischaracterises the response to the letter before action as being a decision letter for the purposes of this claim. It is nothing of the sort. It is simply a response to the allegations made against the authority.[46]Second, although it might fairly be said that the tone of the response is unfortunate and betrays a degree of exasperation on the part of the Defendant towards the Claimant, I can see nothing improper in it. It is substantially a matter of commentary upon the Claimant’s case.[47]Third, as to the detail of this complaint, it seems to me that the observation that “it is obvious that your client can get out and about” is not an unreasonable one, given that the Claimant has made numerous complaints about the malfunctioning of the lift in her building which she was presumably attempting to use in order to get “out and about”. When the lift was not malfunctioning, which, given my conclusion on the disputed evidence on that issue, was the majority of the time, I have no doubt she was able to “get out and about”. The Claimant asserts that she is able to provide care for her adult son who lives in another part of Southwark and the comment that she could contribute two and half hours a week to the community is, in those circumstances, not necessarily inappropriate and certainly does not constitute unfavourable treatment on the grounds of her disability.[48]It may be that those writing the letter overstate their case when they say that it appears that every couple of years the Claimant seeks to move to alternative property; she has moved only twice in more than twenty years. Nonetheless I regard that as nothing more than somewhat ill-tempered hyperbole. It is correct that the Claimant has asked various medical practitioners to write letters supporting her applications; I see no implication in that observation that she has been persuading doctors to act improperly. It appears to be common ground that on at least one occasion the Claimant neglected her flat; it might be somewhat misstated to say it was “trashed” and trashed twice but I do not regard this as significantly improper or as evidence of unfavourable treatment on the ground of disability.[49]Whilst I accept that this letter displays irritation on the part of the Defendant authority, I see no evidence that that is unfavourable treatment as a consequence of the Claimant’s disability. It is evident that the irritation arises from the innumerable complaints made by this Claimant and the significant amount of time it has taken to deal with those complaints; the Ombudsman’s conclusions speak to the propriety of the Defendant’s actions in this regard. Whilst it is conceivable that the Claimant’s mild Asperger’s may have contributed to the frequency of her complaint, there is no medical evidence to that effect and it is not appropriate for me to speculate.[50]Finally on this topic, in my judgment the Defendant’s responses contained in their letters of 23 July 2015 and 8 January 2016 were in no sense indicative of unfavourable treatment arising from the Claimant’s disability. It was in my judgment a considered and proportionate response to persistent complaints which had not been made out.[51]I turn then to the matters of real substance in this case on which the bulk of the argument was focused. Very sensibly, both parties advanced their case on grounds 2 and 3 together. I follow a similar course. Grounds 2 and 3: Priority Stars The Protected Characteristics

Grounds 2 and 3: Priority Stars

[52]The issues that arise are whether the design or operation (and I agreed with the parties to treat that formulation as falling within the grant to leave) of the Council’s priority star scheme indirectly discriminated against the disabled or against women whose caring responsibilities prevented or reduced their ability to work, either for pay or as volunteers.[53]Sections 4 to 12 of the Equality Act identifies and defines seven protected characteristics. As noted above, those include disability and sex. The Claimant is a woman and the Defendant concedes that she suffered from some physical disability.[54]In my judgment, that concession is correctly made. On any view of the, admittedly limited, medical evidence, she suffers from a condition of her hip which significantly affects her mobility. It is clear, on the evidence, that that disability has had a substantial and long term adverse effect on the Claimant’s ability to carry out normal day-to-day activities within section 6(1) of the Equality Act 2010. I do not understand that to be disputed by the Defendant.[55]As explained above, there was a dispute as to whether the Claimant suffers psychiatric disability, but I have accepted that she suffers from mild Asperger syndrome.

Discriminatory conduct

[56]Sections 13 to 19 of the 2010 Act identify types of conduct which are to be treated as discriminatory. I return below to consider whether the design or operation of the priority stars scheme constitutes discrimination within this Part of the Act.[57]Section 29 prohibits, by subsection 1, a service provider from discriminating against a person requiring the service by not providing him or her with it or by any other detriment in the provision of the service. By subsection 6, a person exercising a public function that is not a service to the public, is prohibited from doing anything which constitutes discrimination.[58]Mr Baker says that the Authority is a service provider to which subsection 1 applies. He says that the service being provided was not the provision of housing, to which no applicant has an entitlement, but the provision of the scheme for allocation for housing. I agree.[59]Ms Sanders argued that if the design and application of the scheme is not caught by subsection 1, it is caught by subsection 6. I agree. In my judgment the Authority was concerned with the provision of a service to the public, or a section of it, namely the inhabitants of Southwark. In any event the Authority was exercising a public function.[60]The effect of section 29 is that the Authority may not “discriminate” in a manner defined in Part 2 of the Act in its administration of the allocation scheme. The critical question, therefore, is whether the operation of the scheme amounted to discrimination against women or disabled persons within Part 2 of the Act.

Was this discrimination? – The Competing Arguments

[61]The Claimant contends that the design of both the ‘working household’ priority star and the ‘community contribution’ priority star discriminate against her both as a disabled person and as a woman in that they subject her to a detriment. She says her disability, physical and psychiatric, makes it significantly more difficult for her to meet the criteria needed to be awarded the ‘working household’ priority star, namely to be engaged in paid employment for sixteen hours a week. She acknowledges that she told Dr Pearson 2012 that the problem with finding work was that there was often no work available, but she says her physical condition has deteriorated and it is that that makes it hard for her to find work. She says that her disability similarly makes it more difficult for her to meet criteria two of the ‘community contribution’ priority star, namely the requirement that an applicant volunteers for a community organisation for ten hours a month.[62]The Claimant further argues that the criteria for these two priority stars discriminate against her as a woman. She says that women are more likely to have caring responsibilities, as is the position in her own case in that she has caring responsibilities for her adult son. She says that such responsibilities make it more difficult for women either to work or to volunteer and accordingly more difficult to meet the criteria for these priority stars.[63]Ms Sanders says that the assertion that the disabled find it more difficult to work or to volunteer is self-evident. She says that the assertion that women are less likely to work is supported by the Defendant’s equality analysis which notes that “gender is an issue in relation to economic status with women being universally impacted. Research nationally suggests that women experience lower levels of economic activity than men.”[64]The Defendant does not seek to suggest that these arguments are ill-founded in themselves. Instead, they say that the Claimant’s focus is too narrow. It is not sufficient, they say, to look at these two priority stars alone without having regard to the allocations scheme as a whole, nor to view the case solely through the prism of the Equality Act without regard to the statutory foundation for schemes of this type.[65]Mr Baker relies on the Supreme Court’s judgment in R (Ahmad) v Newham LBC [2009] UKHL 14 for the guiding principles applicable to challenges to housing allocation schemes.[66]Mr Baker argued that the scheme contained a number of features favouring disabled people in general. Those included the fact that its objectives, at paragraph 1.3.1 (i) and (j), include responding “to the circumstances of vulnerable individuals…” and ensuring and promoting “equality of opportunity in accessing the housing register based on reasonable preference”. He points to paragraph 2.2 of the scheme which states Southwark’s commitments to diversity and equality and paragraph 3.2 which makes provision for direct offers of accommodation, including in cases concerning “serious health and safety or personal protection issues”, “other urgent housing needs situations where it would not be reasonable in the circumstances to wait” and “an exceptional need which is not predicted or covered in the Housing Allocation scheme”. He says provisions governing “medical, welfare and disability grounds” at paragraph 5.20 include an award of welfare priority on a grounds including the “need to give or receive care”, “behavioural difficulties”, “mental or physical disorder” and “physical or learning disability”. There is a general provision for the support of vulnerable people at paragraph 5.21.[67]Mr Baker also points to the fact that band 2 gives priority to applicants who have “a severe medical, welfare award or disability” where the current accommodation is unsuitable or it is unreasonable to expect tenants to remain in occupation. Band 3 gives priority to those applicants “with a moderate medical priority where there is a clear objective need for a move because they include a person (or persons) whose illness or disability is either made worse by the their present living conditions or where a move to a more satisfactory accommodation is likely to result in an improvement to health.” He also points to the fact that there is special provision at paragraph 7.11 for “adapted/adaptable properties”.[68]In a similar vein, Mr Baker emphasises features in the scheme which favour women in general and those with caring responsibilities. It is said that women are more likely to be assisted by provisions relating to landlord request transfers, for example in cases of domestic violence. Caring needs and responsibilities are recognised as welfare grounds. There is special provision for the exercise of discretion to grant new tenancies in cases involving full time live in, unpaid carers and in cases of vulnerability. Band 2 provides priority for urgent needs in connection with care. Band 3 includes cases where a homelessness duty is owed and it is said that homelessness assistance disproportionately favours women, especially because of the definition of priority need in section 189, which includes pregnancy and households where there are dependent children.[69]As Mr Baker points out the primary element of the allocation scheme is the four bands and the Claimant makes no challenge either to that structure or to her place at band 4.[70]Mr Baker argues that the priority stars impugned in these proceedings were only two out of six. The others relate to people owed a statutory homelessness duty, people occupying unsatisfactory housing, people who need to move on severe medical or severe welfare grounds, and people who need to move because of severe hardship. Mr Baker also points to the evidence of Ian Swift, Southwark Group Services Manager who sets out data which he says demonstrate that the priority stars have not in fact discriminated against those unable to work or volunteer by reason of disability and gender.[71]These are all powerful points suggesting that there is no intent on the part of Southwark to discriminate against either women or the disabled. However what matters is not intent, but effect. Mr Baker would suggest that effect can only be measured by viewing the operation of the scheme as a whole whereas Ms Sanders argues that it is necessary to consider the effect of the particular elements of the scheme in deciding whether it has discriminatory effect under Part 2. She says that the effect of the policy as a whole is relevant, if at all, only at the stage of justification.[72]Arguments to a similar effect were considered by His Honour Judge Waksman QC in R (H and Others) v Ealing London Borough Council [2016] EWHC 841 (Admin) (a case which I was told is being appealed). As in the present case, H concerned the use of priority bands to allocate housing. There a scheme was introduced by the Council to incentivise tenants to work and to encourage good tenant behaviour. Under the scheme, 20% of available lettings were removed from the general pool and reserved for working households, where one family member worked for at least 24 hours each week, and for model tenants, namely those who had complied with the terms of their council tenancy. The claimants included elderly people and a single parent who was a carer for another claimants, and who were disabled within the meaning of the Equality Act 2010 s.6 and unable to work. The claimants argued that the scheme indirectly discriminated against women, disabled and elderly persons within the meaning of s.19(2) of the Act and was not justified.[73]The headnote provides a convenient, and accurate, summary of the judgment:
“women, disabled persons and the elderly were prima facie unfairly disadvantaged under the new scheme, due to their disadvantage in the labour market and consequential difficulty in meeting the imposed working criteria necessary to qualify for housing stock removed from general availability, and the sample figures adduced from the new scheme in practice did not overturn that apparent position; that while it was necessary to consider the policy in the round, the discriminatory effect of a particular provision within the global policy could not be ignored if such a provision impacted upon the overall scheme; that, therefore, the local housing authority, by its scheme, indirectly discriminated against protected groups, being the disabled, the elderly and women in the provision of a service, namely housing, within the meaning of section 19(1) of the Equality Act 2010 ; that while the authority had a legitimate aim in encouraging tenants to work and to be well-behaved in relation to their tenancy and the scheme was a rational means of achieving that aim, it was clearly not the least intrusive way of doing so, since the authority could readily have included a “safety valve” mechanism or discretionary provision to allow, in exceptional circumstances, for the inclusion of the disadvantaged within the reserved allocation of housing; that, therefore, the discrimination was not justified under section 19(2) ; and that, accordingly, the working households element of the scheme constituted unlawful indirect discrimination under the 2010 Act”
.

Conclusion on indirect discrimination

[74]As to the first stage of that argument, I respectfully agree with Judge Waksman. In my judgment, it is perfectly plain that the effect of the priority star scheme in the present case is indirectly to discriminate against those with disabilities and against women. It is beyond argument, in my view, that to make available a benefit, here a “star” which increases the prospect of achieving preferential housing, which can more readily be acquired by those without a disability, is to discriminate against the disabled by subjecting them to a detriment.[75]In fact, the documents produced by the Defendant more or less acknowledge the capacity in the scheme to discriminate: their “Pre-implementation Equality Analysis” says that “disabled people are more than twice as likely to be unemployed as non-disabled people” and that there is “potential for people with disabilities to be disadvantaged within the process, particularly those with mental illness”. And that applies as much to the priority star for volunteering as it does to that for working households.[76]The fact that there are other elements of the scheme which disabled persons may more readily be able to achieve is nothing to the point; the priority stars are cumulative in their effect and being disabled makes it less likely that an applicant will be able to obtain one or both of these stars and enjoy the preference they bring. The Defendant sought to rely on statistics to show that, in fact, there was no significant discrimination in the operation of the schemes. That argument seems to me doomed to failure. The Claimant makes legitimate criticism of the statistics used; certainly the failure in the figures to distinguish between “applicants” and “households” and the very small samples used, makes the figures unreliable. But the figures simply do not respond to the inevitable conclusion on the evidence.[77]Similarly, the Defendant acknowledges that the allocation of these two priority stars discriminates against women. Wholly unsurprisingly, in its equality analysis the Defendant acknowledges that “research nationally suggests that women experience lower levels of economic activity than men” and the Defendant produced no evidence that the position was different in Southwark. The evidence as to female volunteering was much less convincing; I was shown a single newspaper article which suggested that, whilst for many years men had been less likely to volunteer than women, very recently it had been shown that 27% of men did voluntary work against 26% of women. However, I accept the Claimant’s argument that women are much more likely to be volunteer carers than men and the Defendant’s scheme makes no allowance for that as regards this priority star.

A proportionate means of achieving a legitimate aim – The test

[78]For those reasons, I accept Ms Sanders’ case that this scheme was indirectly discriminatory against the Claimant. The critical question is whether that discrimination can be justified as being proportionate to the objective in view. The final requirement under Section 19(2) is that the Defendant cannot show that the provision, criterion or practice complained of is “a proportionate means of achieving a legitimate aim”.[79]The parties differed as to the proper approach to this issue and, in particular, as to whether the appropriate test was whether the council’s policy decision should be respected unless it was “manifestly without reasonable foundation”, the position adopted by Mr Baker, or whether the Court should apply the “structured approach” set out in Bank Mellat v HM Treasury (No 2) [2014] AC 700.[80]In support of his case, Mr Baker referred to a series of cases concerning decisions of the Government in the field of social welfare, notably Stec v UK (2006) 43 EHRR 1017, R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, and R (RJM) v Secretary of State for Work and Pensions[2008] UKHL 63. In response to the argument that these were cases of “high policy”, far removed from individual housing decisions by local councils, Mr Baker referred to the judgment of Lord Dyson in R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13. At paragraphs 54 – 55 Lord Dyson said:
“Although the precise detail and scope of the Regulations may not be matters of high policy in themselves, they form an integral part of what was unquestionably a high policy decision. The particular decisions taken to give effect to the high policy decision cannot be dismissed as being technical detail. These decisions involved policy choices even if at a lower level than the overarching decision to reduce HB by focusing on the problem of “under-occupancy” of accommodation….This area of the law would suffer from undesirable uncertainty if the test were to be ‘manifestly without reasonable foundation’ where there is a challenge to high policy decisions and a less stringent test where the challenge is to lower level policy decisions. I see no warrant for taking this course.”
[81]In my judgment, it is impossible to equate Regulations approved by Parliament with a local council’s housing allocation scheme. I accept the Claimant’s submissions that the social welfare cases relied on by the Defendant are of little assistance.[82]In my judgment, as Ms Sanders argues, the authority that is applicable here is the Supreme Court’s decision in Aster Communities v Akerman-Livingstone [2015] AC 1399, a case which concerned possession proceedings initiated at the instigation of a local authority against a man suffering from a severe and pronged stress disorder. Lady Hale noted that by ss15 and 35 of the Equality Act Parliament had provided for disabled people to have rights in respect of the accommodation which they occupy which are different from, and additional to, the rights of non-disabled people. Landlords may be required to accommodate, or to continue to accommodate, a disabled person when they would not be required to accommodate, or continue to accommodate, a non-disabled person. But she said “This is not an absolute obligation. The landlord is entitled to evict a disabled tenant if he can show that this is a proportionate means of achieving a legitimate aim”. At paragraph 28 she held:
“The concept of proportionality contained in section 15 is undoubtedly derived from European Union law, which is the source of much of our anti-discrimination legislation. Three elements were explained by Mummery LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 , para 165: “First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?”
This three-fold formulation was drawn from the Privy Council case de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 , 80, which was itself derived from the Canadian case R v Oakes [1986] 1 SCR 103 . However, as Lord Reed JSC explained in Bank Mellat v HM Treasury (No 2) [2014] AC 700, 788, para 68 et seq, this concept of proportionality, which has found its way into both the law of the European Union and the European Convention on Human Rights, has always contained a fourth element. This is the importance, at the end of the exercise, of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them. As the Court of Justice of the European Communities put it in R v Minister for Agriculture, Fisheries and Food, Ex p Fedesa (Case C-331/88) [1990] ECR I-4023 , para 13, “the disadvantages caused must not be disproportionate to the aims pursued”; or as Lord Reed JSC himself put it in the Bank Mellat case [2014] AC 700 , 791, para 74, “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.”[83]In R (H) v Ealing LBC, that this was the correct approach was common ground. As

Judge Waksman observed at paragraph 58:

“The statutory form of justification is put at section 19(2) of the 2010 Act as being “a proportionate means of achieving a legitimate aim” and the burden is on the defendant. It is common ground that proportionality should be determined in accordance with the cumulative four-stage test set out by Lord Reed JSC in Bank Mellat v HM Treasury (No 2) [2014] AC 700, para 74, namely: (1) is there a sufficiently important objective (i.e. legitimate aim), (2) is the measure rationally connected to that objective, (3) is it the least intrusive measure which could be used without unacceptably compromising the objective and (4) in adopting the measure has the defendant struck a fair balance between the importance of securing the objective and its particular effects on the claimant’s rights?”
[84]I accept Ms Sanders’ submissions in this regard and that is the approach I apply.

A proportionate means of achieving a legitimate aim – Application of the test

[85]It was not disputed by the Claimant that the Defendant’s scheme met elements 1 and 2 of the rule set out in Bank Mellat; the policy had a legitimate aim, namely, as set out in the scheme, the creation of sustainable and balanced communities and encouraging residents to make a contribution to the local community. Furthermore, the priority stars had a rational connection to that objective. That must be right. The allocation scheme follows the requirement of s 166A of the Housing Act and it is legitimate for local authorities to seek to ensure that their communities include a reasonable proportion of working members, people able to make a financial contribution to the maintenance of the community, and to encourage those willing to provide voluntary assistance to others in their neighbourhood. Giving a measure of priority to working households and to those who provide community services helps achieve those objectives.[86]The real question is whether a priority scheme like the Defendant’s was the least intrusive measure which could be used without unacceptably compromising the objective. In my judgment it was.[87]At this stage of the analysis, it is legitimate to look at the scheme as a whole. All the points made by the Defendant in support of their argument that there was no discrimination, summarised above at paragraphs 64 to 70, are relevant considerations at this stage. So far as was tested before me, this scheme was a proper and lawful response to the requirements of the Housing Act 1996, the Homelessness Act 2002 and the Localism Act 2011.[88]By s169(1) of the 1996 Act, local authorities are required to have regard to the Secretary of States Guidance. Paragraph 4.27 of the 2012 version of that Guidance provides:
“Local authorities are urged to consider how they can use their allocation policies to support those households who want to work, as well as those who – while unable to engage in paid employment – are contributing to their community in other ways, for example, through voluntary work…”
[89]As it was put in the Defendant’s Grounds, the scheme “gave reasonable preference to the required categories of persons. It contained a package of provisions affording relative priority as between registered applicants in a number of different respects; each of those provisions will in isolation afford priority to various different persons or groups thereby affording relatively less priority to others” (emphasis added).[90]In other words, by its very nature, this scheme, which is authorised by primary legislation and follows statutory Guidance, involves discrimination in order to achieve the stated aims. Those who fall outside the groups given preference are, inevitably, exposed to a detriment. But that is integral to any reasonable preference scheme.[91]Meeting the test which I have found is applicable, however, requires that the measure adopted must be the least intrusive which could be used without unacceptably compromising the objective. It must also be shown by the Defendant that in adopting the measure they struck a fair balance between securing the objective and its effects on the Claimant’s rights.[92]Determining those matters in the context of housing allocation schemes is especially difficult. Every tweak to the scheme to benefit one individual or one class of applicant is likely to have an adverse effect on another; every exception to the operation of a preference may damage the achievement of the objective. The Court inevitably concentrates on the circumstances of the claimant in front of it and it is easy to recognise the disadvantage that a claimant may suffer. But the local authority has to consider the position of all applicants and the Court can have only the most attenuated understanding of their position.[93]It seems to me that it is at this stage of the exercise, and not before, that the authorities to which Mr Baker referred when making submissions on the nature of the test to be applied, in fact have application. In R (Ahmad) v Newham LBC [2009] UKHL 14, Lady Hale said at paragraph 15:
“The trouble is that any judicial decision, based as it is bound to be on the facts of the particular case, that greater weight should be given to one factor, or to a particular accumulation of factors, means that lesser weight will have to be given to other factors. 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. Furthermore, relative needs may change over time, so that if the council were really to be assessing the relative needs of individual households, it would have to hold regular reviews of every household on the waiting list in order to identify those in greatest need as vacancies arose. No one is suggesting that this sort of refinement is required. It would be different, of course, if the most deserving households had a right to be housed, but that is not the law.”
[94]Lord Neuberger said at paragraph 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 re-housing, 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.”
[95]At paragraph 62, he commented on: “….how inapt it is for the courts to interfere with housing allocation schemes, save in clear and exceptional circumstances. This follows from the striking imbalance between supply and demand for housing, the very large number of families with an urgent need to be housed under Part VI of the 1996 Act, and the almost infinite number of different permutations of circumstances giving rise to the urgency. Knowledge of the circumstances of applicants generally, long term strategy considerations, expertise, political and social awareness, and local knowledge all have a part to play when it comes to formulating and implementing a housing allocation scheme. With information essentially consisting of the scheme itself, the circumstances of the particular applicant and a few statistics (of questionable mutual consistency), the court should be very slow indeed to second guess” the local authority concerned.[96]Ahmad predated the Equality Act 2010 and does not address the 2010 Act’s predecessor legislation. But in my judgment, the statements of general principle which I have set out apply with considerable force to the questions whether the measure adopted was the least intrusive possible without compromising the objective and whether it struck the right balance.[97]Here, the Council has devised a scheme which seeks to address the needs of all the classes of applicant in its area. It has made provision for those with priority need, for the homeless and vulnerable, for those who need to move on medical or welfare or hardship grounds. It is entitled, consistent with the Secretary of State’s Guidance, to favour those in work and those who volunteer.[98]I can see no measure less intrusive, less likely to be detrimental to the Claimant, which would not undermine the legitimate objective identified by the council and to which I have referred above. To extend the class of volunteers to include all those who, like the Claimant, provide some measure of care for others living in other accommodation would inevitably reduce the ability of the council to cater for those who benefit from the reasonable preferences provided for by the scheme. To extend the class of working households to include those who cannot work because of the type of disabilities suffered by the Claimant would inevitably conflict with the legitimate preference to be given to those in work. The wider the class the less valuable the benefit of being within it.[99]Even though this allocation scheme does, in my judgment, discriminate against those with the sort of disabilities of which the Claimant complains and against women, especially women who have unpaid caring responsibilities, in my judgment the Defendant has shown that it has adopted a scheme which was the least intrusive possible and which struck the right balance.[100]I am reinforced in that view by the existence within the scheme of provision for exceptional cases. Paragraph 1.1.10 provides that “Any provision in this scheme may be waived in exceptional and limited circumstances at the discretion of the appropriate senior officer…”. It is apparent from that provision that the Council has, very properly, reserved to itself the right to remedy particular incidents of unfairness thrown up by the operation of the scheme. It has a “safety valve”.[101]That is just one respect in which this case differs on its facts from that considered by Judge Waksman in R (H) v Ealing LBC. But questions of justification will always turn on the facts of the particular case. In the Ealing case, Judge Waksman found the discrimination could not be justified; here I find it is.

Conclusion

[102]In those circumstances, and for those reasons, this claim is dismissed.

Cited in 4 later judgments