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

Fecha: 05-Nov-2025

LORD JUSTICE LEWIS

LORD JUSTICE LEWIS:

INTRODUCTION

This appeal concerns the allocation of housing by a local housing authority under the provisions of Part VI of the Housing Act 1996 (“the 1996 Act”). Such authorities are required to adopt an allocation scheme for determining priorities in the allocation of housing. The respondent, the London Borough of Enfield, adopted such a scheme. That scheme provided that particular categories of persons would be awarded a certain number of points and they could use those points to bid for appropriate housing that became available. Properties would be allocated to those with the greatest number of points or, if each applicant had the same number of points, to the person that had been on the waiting list longest.

The allocation scheme provided that homeless persons living in accommodation provided by the respondent pursuant to a duty under section 193 of the 1996 Act be awarded 200 points. In addition, persons with a low or medium health and wellbeing need could be awarded 50 or 150 additional points respectively. Those who were homeless, however, were not eligible for the award of these additional points.

In brief, the appellant, RR, is a person who is owed a duty under section 193 of the Act. He is also on the waiting list for the allocation of accommodation under Part VI of the Act. He submits that the provision of the allocation scheme, whereby homeless persons could not obtain additional points for a low or medium health and wellbeing need, amounted to a provision, criterion or practice (referred to as a PCP) within the meaning of section 19 of the Equality Act 2010 (“the 2010 Act”) and is discriminatory. In particular, the appellant submits that the PCP puts homeless households containing a disabled person (such as the appellant’s household) at a particular disadvantage when compared with homeless households with no disabled members. The particular disadvantage is said to be that homeless households with a disabled member wait longer for the allocation of housing under Part VI as compared with homeless households without a disabled member. The appellant submits that the respondent cannot show that that PCP is a proportionate means of achieving a legitimate aim. He also submits that the respondent had failed to make reasonable adjustments in accordance with its duty under section 20 of the 2010 Act by failing to give him additional preference. He also submits that the respondent was in breach of its obligation under section 149 of the 2010 Act to have due regard to specified equality considerations.

HHJ Walden-Smith (“the Judge”) dismissed the claims under sections 19 and 20 of the 2010 Act. She refused to admit three categories of evidence, namely, a January 2023 All-Party Parliamentary Group report on Households in Temporary Accommodation, an October 2023 report of Shelter and the respondent’s response to a freedom of information request. The Judge found that the respondent was in breach of its obligations under section 149 of the 2010 Act in failing to monitor and collect statistics relating to the allocation of housing to households with a disabled person. She refused a remedy as the decision would not have been different if the respondent had complied with what the Judge described as its duty to monitor and record statistics, applying the provisions of section 31(2A) of the Senior Courts Act 1981 (“the 1981 Act”).

The appellant has permission to appeal on four grounds, namely:

(1)

it was unjust and irrational for the Judge (i) to exclude evidence that was relevant to the question of whether the respondent’s policy had a disproportionate impact upon people with disabilities and (ii) consequently to conclude that the appellant had failed sufficiently to demonstrate that the policy had such an impact;

(2)

the Judge did not apply the correct burden and standard of proof as required by section 136 of the 2010 Act in respect of the duty to make reasonable adjustments under section 20 of the 2010 Act;

(3)

the Judge did not apply the correct burden and standard of proof as required by section 136 of the 2010 Act in respect of the claim that the policy gave rise to indirect discrimination contrary to section 19 of the 2010 Act;

(4)

the Judge was wrong to refuse a remedy in respect of the breach of section 149 of the 2010 Act as (i) she adopted an incorrect approach to section 31(2A) of the 1981 Act and (ii) was wrong to conclude that the outcome would not have been substantially different if section 149 had not been breached.

The appellant also sought permission to adduce new evidence in the form of statements made by the respondent and recorded in a BBC news report and a report of the Local Government and Social Care Ombudsman (“the Ombudsman”).

By a respondent’s notice dated 25 March 2025, the respondent seeks to uphold the decision on an additional ground, namely that the Judge erred in finding that there had been a breach of section 149 of the 2010 Act. Finally, by an application notice dated 18 September 2025, the respondent seeks an order dismissing the appeal as it has become academic because the allocation scheme was amended in April 2025 and because the appellant was no longer registered under the scheme as he has obtained a private-sector tenancy.