The UK Court of Appeal has found that a housing allocation policy that requires ten years continuous residency indirectly discriminated against Irish Travellers and refugees.
The decision concerned two appeals challenging London Borough of Hillingdon’s housing policy which requires that a person have continuous residence in the borough for at least ten years in order to join the housing register. Two challenges were brought by an Irish Traveller in Ward and a Kurdish refugee in Gullu, both of whom were living in temporary or homeless accommodation in the borough but were denied access to the register. The action brought by Ms Ward succeeded in the High Court before Justice Supperstone, however, the action of Mr Gullu failed before Justice Mostyn. Permission to appeal was granted as the court reached different conclusions to ultimately the same questions.
The Court of Appeal found that Mostyn J in Gullu had erred in judgment by applying the test for direct discrimination, rather than the test for indirect discrimination. The Judge incorrectly used the individual comparator of a voluntary migrant from Yorkshire or France, rather than a group that share the relevant protected characteristic, being non-UK nationals.
The question then became: were non-UK nationals put at a disadvantage in satisfying the ten-year residence requirement as compared with persons who were UK nationals? The Court accepted that a long line of cases have established that a residence requirement disadvantages non-UK nationals. Hillingdon had not put forward justification for the policy, and the ‘safety valves’ which provided for cases of exceptional hardship showed no evidence of operating to reduce disadvantage for these two groups. The Court therefore allowed the appeal in Gullu, however left it open to Hillingdon to provide better evidence of justification of the discrimination.
In considering the Public Sector Duty, the Court reviewed the Equality Impact Assessments carried out by Hillingdon when introducing the policy in 2013 and amending it in 2016, which came after the judicial review in Gullu had been filed. Neither of these assessments considered the position of Travellers, refugees or non-UK nationals. The Court found that while the duty did not require the assessments to take into account all conceivable groups, but once there was indication that a particular group might be affected there was a duty to adequately consider them. Therefore as refugees and non-UK nationals had not been highlighted by the 2016 assessment, it was in breach of the Public Sector Duty for failing to consider that group.
Click here for the decision in Ward and Gullu v London Borough of Hillingdon.