CA-2024-002348 - [2025] EWCA Civ 1390

Section 19(1) of the 2010 Act provides that a person (which includes a public body) discriminates where it applies a PCP which is discriminatory. That involves determining if the conduct complained of is a PCP. It will also involve consideration of whether the PCP is discriminatory which, in turn, involves considering each of the four elements identified in section 19(2)(a) to (d) of the 2010 Act. Sections 19(2)(a) and (b) involve at least the following two elements. First, it is necessary to establish that the PCP is applied to one group of persons with a protected characteristic as compared with another group who do not share that characteristic. There needs to be a comparison between the two groups to show that one group is put at a particular disadvantage as compared with the other group. Put differently, it is necessary to show that the PCP has a disproportionate impact on the group of persons with a protected characteristic. Secondly, it is necessary to show a causal link between the disadvantage and the PCP, that is that it is the PCP that puts persons at a particular disadvantage. See, generally, the decision of the Supreme Court in Essop v Home Office [2017] UKSC 27; [2017] 1 WLR 1343, especially at [4], [25] and [41].

In the present case, the PCP relied upon is the provision in the respondent’s housing allocation scheme “which disentitles homeless applicants from accruing any additional medical or wellbeing priority” (see paragraph 66 of the amended statement of facts and grounds forming part of the claim form). For clarity the PCP prohibits the award of the 50 or 150 additional points for a low or medium health and wellbeing need. It is clear that, on a proper interpretation of the scheme, persons who have a high level of health or wellbeing need, as defined in the allocation scheme itself, will qualify for the 1000 points awarded to that preference group whether or not they are homeless and being provided with accommodation by the respondent.

The claim is that that PCP puts homeless households with a disabled member at a particular disadvantage as compared with homeless households without a disabled member. The particular disadvantage is said to be that homeless households with a disabled member are waiting longer before being allocated social housing under Part VI than homeless households without a disabled member. The comparison that is made, therefore, is between those two groups in respect of the time spent waiting for the allocation of social housing under Part VI. Then consideration needs to be given as to whether it is the particular PCP in issue, namely the fact that homeless persons cannot accrue the additional 50 or 150 points for a low or medium health and wellbeing need, which causes the particular disadvantage.