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

Section 149 of the 2010 Act imposes a duty on public bodies, often referred to as the public sector equality duty. It is important, however, to consider the terms of section 149 in order to determine the scope or content of that duty. It is an obligation on a public authority (1) “to have due regard” (2) “in the exercise of its functions” (3) to the need to eliminate discrimination, harassment, victimisation or other prohibited conduct, and to advance equality of opportunity, and to foster good relations, between persons who share a protected characteristic and those who do not.

The starting point, therefore, is to identify the particular functions that the public body is exercising. The next step is to assess whether, on the evidence, the authority did have due regard to the specified equality considerations when exercising those functions.

In the present case, the respondent was exercising a function when it adopted its housing allocation scheme. It carried out an equality impact assessment prior to adopting its allocation scheme. There is no suggestion that the allocation scheme is unlawful or that the respondent failed to have due regard to the relevant equality considerations when adopting that scheme.

The second function the respondent exercised was carrying out a review of the decision to award the appellant 200 points in accordance with the allocation scheme. As appears from the decision letter of 23 May 2023, the reviewer took into account the fact that the appellant’s wife had been diagnosed with a number of health issues and that the appellant was contending that he should be awarded reasonable preference on the grounds of health and wellbeing. The reviewer took into account the submissions made on behalf of the appellant to the effect that the allocation scheme was discriminatory because it did not award reasonable or additional preference to homeless households. The reviewer, however, concluded, correctly, that the allocation scheme specified that applicants who were homeless or threatened with homelessness were not entitled to wellbeing and health points either as a reasonable preference or additional points. She pointed out that the respondent was required to allocate housing in accordance with the allocation scheme (citing section 166A(14) of the 1996 Act). In the circumstances, therefore, there was no failure on the part of the respondent to have due regard to the specified equality considerations when exercising its function of reviewing the allocation of points to the appellant. That exercise of functions did not involve a breach of section 149 of the 2010 Act.

In those circumstances, the Judge was wrong to conclude that there had been a failure by the respondent to have due regard to the relevant equality consideration. She failed to consider the relevant exercise of functions and to consider whether, in exercising those functions, the respondent had failed to have due regard to the specified equality considerations. Rather, the judgment indicates that the Judge erroneously considered that there was some free-standing duty to monitor or collect statistics and that there had been breach of that duty.

The collection of statistical data on the operation of a policy is good practice (as recognised by the EHRC and the respondent itself in its equality impact assessment). There may, depending on the facts, be situations where a public body is reviewing its policy and may not have sufficient information to consider the equality implications because it has not monitored or collected data on the operation of the policy. It may have to consider how to acquire the relevant information. See, by way of example, the decision in R (Ward) v Hillingdon London Borough Council [2019] EWCA Civ 692, [2019] PTSR 1738 which dealt with a housing allocation scheme which required persons to have lived in the borough for 10 years in order to be eligible to join the register of persons seeking Part VI accommodation. Lewison LJ, with whom King and Underhill LJJ agreed, recognised that there may be circumstances where it would need to be shown that the policy maker had given adequate thought, conducting such inquiries as necessary, to decide which protected groups should be considered. He concluded that the local housing authority was not in breach of section 149 of the 2010 Act when it adopted its allocation scheme in 2013. However, when it amended the scheme in 2016, it should have considered the position of non-UK nationals, such as refugees, as that matter had been brought to its attention at that stage. For that reason, there was a breach of section 149 of the 2010 Act.

The appellant relied on the decision in DXK. There, however, the deputy High Court judge was concerned with the duty of the Secretary of State under section 4(2) of the Immigration and Asylum Act 1999 (“the 1999 Act”) to provide failed asylum-seekers with accommodation when they were destitute and the provision of accommodation was necessary to avoid a breach of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Secretary of State accepted that, generally, accommodation should be provided within five working days. The Secretary of State engaged independent contractors to provide the accommodation. However, there was no means of checking that the independent contractors were, in fact, providing failed-asylum seekers with accommodation within the relevant time scales.

In the earlier case of R (DMA) v Secretary of State for the Home Department [2020] EWHC 3416 (Admin), [2021] 1 WLR 2374 (“DMA”), Knowles J. had held that the failure by the Secretary of State to collect data, and to use that data to ensure that the contractors provided accommodation to failed asylum-seekers within the relevant timescale, meant that the Secretary of State was not in a position to ensure that she was acting lawfully and in a way which complied with her duty under section 4(2) of the 1999 Act. Some of the failed asylum-seeker claimants had disabilities. Knowles J. found that the failure by the Secretary of State to monitor the provision of accommodation by contractors resulted in a breach of section 149 of the 2010 Act for two reasons. First, there was a failure to resolve the problem when accommodation which the Secretary of State was obliged to provide was not being provided. Secondly, there were economic incentives built into the contracting model which made it less profitable (or unprofitable) to provide disabled failed-asylum seekers with accommodation (see [203]). In that context, there was a need to ensure that the system was working, and if not to identify solutions, where the system for providing accommodation under section 4(2) of the 1999 Act was leading to the provision of accommodation for persons with a disability taking longer than it did for persons without a disability (see at [320]).

The decisions in DXK and DMA were both concerned with the situation that arose where the Secretary of State had a duty to provide accommodation to a group of people (failed asylum-seekers) and discharged that duty through independent contractors. The Secretary of State needed to have a system in place that ensured that the contractors did provide the accommodation within the relevant timescale and did not take longer to provide accommodation to disabled failed-asylum seekers as compared with non-disabled failed asylum- seekers. The reference to gathering information and a duty to monitor need to be understood in that context. The courts were recognising that the necessary information had to be obtained to enable the Secretary of State to discharge the functions under section 4(2) of the 1999 Act to provide accommodation. The courts were not deciding that there was some free standing duty to monitor, derived from section 149 of the 2010 Act, and, still less, were they indicating that a decision reached in accordance with a lawful policy, such as the housing allocation scheme in the present case, would be unlawful in the absence of monitoring of the effects of the policy.

The respondent was correct, therefore, in its submissions that there was no breach of section 149 of the 2010 Act in this case. If there had been such a breach in the present case (which there is not), then I would have upheld the decision of the Judge to refuse a remedy pursuant to section 31(2A) of the 1981 Act. That section provides that the court must refuse relief where it is highly likely that the outcome for the individual concerned would not have been substantially different if the conduct complained of had not occurred. The outcome here was the review decision of 23 May 2023 which found that the appellant was correctly awarded 200 points under the housing allocation scheme and was not entitled to additional points for health or wellbeing needs. The conduct complained of was that the respondent had not monitored and recorded statistics relating to the allocation of housing to homeless households with disabled members. The proper approach to section 31(2A) of the 1981 Act is set out in R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 especially at paragraph 71, and R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA 488, [2025] 2 P & C.R 16 especially at paragraph 73. The court is concerned with evaluating the significance of the error on the decision-making process. It considers the decision that the public body has reached and assesses the impact of the error on that decision in order to ascertain whether it is highly likely that the outcome (the decision) would not have been substantially different if the error had not been made.

In the present case, the review decision was correct in its application of the respondent’s housing allocation scheme. As the decision-maker noted, the respondent was required to allocate housing in accordance with that scheme. Any alleged failure to monitor and obtain statistics would not affect the decision on the review. At most, it might have been relevant, dependent on the circumstances, to a future review of the housing allocation scheme. In those circumstances, if there had been any breach of duty, the Judge would have been entitled to refuse a remedy in relation to the decision under challenge.