R (XC) v Southwark LBC  

[2017] EWHC 736 (Admin), 7 April 2017

Garnham J

The Administrative Court has held, applying R (Ahmad) v Newham LBC [2009] UKHL 14; [2009] HLR 31, that although priority within a housing allocation scheme in favour of working households and those undertaking voluntary activity was indirectly discriminatory against disabled people and women who were volunteer carers, Southwark had shown the scheme was a proportionate means of achieving a legitimate aim and had adopted the least intrusive measure possible and struck the right balance.

Christopher Baker of Arden Chambers appeared for Southwark LBC.

Background

The claimant, who suffered from hip problems and Asperger’s syndrome, had applied for a transfer from her existing council accommodation on the third floor, accessed by a lift which on occasions had been out of service, although there was a dispute about the frequency and duration of these episodes. The claimant also complained about noise from her upstairs neighbour.

She had previously made a very large number of complaints about the neighbour but these were investigated by Southwark and found to be unsubstantiated. As a result of the disruptive effect of the claimant’s persistence in complaining, Southwark placed controls on her access to staff by imposing a single point of contact and deciding not to accept further reports of noise from her. She complained to the Ombudsman, who rejected her complaint on the facts.

Southwark assessed the claimant’s application under their housing allocation scheme. She was registered and placed in band 4 which was the lowest priority. She sought a number of reviews of her priority band, all of which had been unsuccessful.

The housing allocation scheme included provision for determining the relative priority between applicants within bands by reference to a “priority star” system. This awarded stars for (cumulatively) each of a number of criteria, including being a working household and for voluntary activity. Within the priority bands, in general applicants with stars were preferred over others without stars and applicants with more stars were preferred over those with fewer. The claimant had not worked for many years and did not undertake any voluntary activity, although she was the main carer for her adult son who suffered from more severe Asperger’s syndrome than she did.

The claimant alleged she had been treated unfavourably by reason of disability in the manner in which her application had been dealt with, including by way of a letter sent by Southwark as a response under the judicial review pre-action protocol, which she contended belittled her in an offensive manner. She also alleged that the formulation and operation of the priority star system constituted unlawful discrimination on grounds of disability and sex for the purposes of the Equality Act 2010.

Decision

The Court held, dismissing the claim:

(1) Although it might fairly be said the tone of the pre-action response letter was unfortunate and betrayed a degree of exasperation, there was nothing improper in it and it was not a decision on the claimant’s application; Southwark’s letters reviewing her priority were in no sense indicative of unfavourable treatment arising from her disability, but were a considered and proportionate response to persistent complaints which had not been made out.

(2) The effect of the priority star system was indirectly to discriminate against those with disabilities and against women; to make available a benefit, i.e. a “star” increasing the prospect of achieving preferential housing which could more readily be acquired by those without a disability, was to discriminate against the disabled by subjecting them to a detriment; the fact that there were other elements of the scheme which disabled persons might more readily be able to achieve was nothing to the point because the priority stars were cumulative in their effect and being disabled made it less likely that an applicant would be able to obtain one or both of these stars and enjoy the preference they brought; women were also much more likely to be volunteer carers than men and the scheme made no allowance for that.

(3) The correct approach in determining whether Southwark could show that the scheme was a proportionate means of achieving a legitimate aim was the “structured approach” set out in Bank Mellat v HM Treasury (No 2) [2014] AC 700, rather than the “manifestly without reasonable foundation” test used under art.14 in the field of social welfare in cases such as Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; it was impossible to equate a local council’s housing allocation scheme with benefit regulations approved by Parliament.

(4) The real question was whether a priority scheme like Southwark’s was the least intrusive measure which could be used without unacceptably compromising the legitimate objective for local authorities of seeking to ensure that their communities included 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 helped achieve those objectives; Southwark also had to show that in adopting the measure they struck a fair balance between securing the objective and its effects on the claimant’s rights.

(5) It was legitimate to look at the scheme as a whole; by its very nature, this scheme, authorised by primary legislation and following statutory Guidance, involved discrimination in order to achieve the stated aims; those who fell outside the groups given preference were, inevitably, exposed to a detriment, but that was integral to any reasonable preference scheme; it was especially difficult to determine, in the context of housing allocation schemes, what was the least intrusive measure and whether a fair balance had been struck; every tweak to the scheme to benefit one individual or one class of applicant was likely to have an adverse effect on another; every exception to the operation of a preference might damage the achievement of the objective; the Court inevitably concentrated on the circumstances of the claimant in front of it and it was easy to recognise the disadvantage that a claimant may suffer, but the local authority had to consider the position of all applicants and the Court could have only the most attenuated understanding of their position.

(6) The statements of general principle in R (Ahmad) v Newham LBC [2009] UKHL 14; [2009] HLR 31,  by Lade Hale at [15] and Lord Neuberger at [46] and [62] (i.e. as to how difficult, undesirable and inapt it was for courts to interfere in such schemes on grounds of irrationality) applied 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.

(7) Southwark had devised a scheme which sought to address the needs of all the classes of applicant in its area, they had made provision for those with priority need, for the homeless and vulnerable, for those who needed to move on medical or welfare or hardship grounds and they were entitled, consistent with the Secretary of State’s Guidance, to favour those in work and those who volunteered; the Court could see no measure less intrusive, less likely to be detrimental to the claimant, which would not undermine the legitimate objective identified by Southwark; to extend the class of volunteers to include all those who, like the claimant, provided some measure of care for others living in other accommodation would inevitably reduce Southwark’s ability to cater for those who benefitted from the reasonable preferences provided for by the scheme; to extend the class of working households to include those who could not 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.

(8) Southwark had accordingly shown that they had adopted a scheme which was the least intrusive possible and which struck the right balance; the Court was reinforced in that view by the existence within the scheme of provision for exceptional cases; it was apparent from that provision that Southwark had, very properly, reserved the right to remedy particular incidents of unfairness thrown up by the operation of the scheme; there was a “safety valve”.