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

The PCP itself is neutral as between the two groups of homeless households (i.e. those with, and those without, a disabled member). The claim is that, in practice, one group (homeless households with a disabled member) are waiting longer for the allocation of social housing under Part VI.

In the present case, however, there was no material before the Judge which enabled her to determine the period of time that homeless households with a disabled member spent waiting for the allocation of Part VI social housing as compared with homeless households without a disabled member. There was no statistical or other material addressing that point. There was nothing, therefore, to enable the Judge to conclude that homeless households with disabled members were put at a particular disadvantage, and were waiting longer to be allocated Part VI social housing, than homeless households without a disabled member.

That is why the appellant wished to rely on three additional pieces of evidence, namely the ones that the Judge refused to admit, and why the appellant submitted that, in the light of section 136 of the 2010 Act, it was for the respondent to provide an explanation as to why there was no contravention of the 2010 Act.

Section 136 requires a court to be satisfied from all the evidence before it that there are facts from which it could decide, in the absence of any other explanation, that there has been a contravention of the 2010 Act. The burden is on the claimant to establish facts from which a court or tribunal could conclude, in the absence of an adequate explanation, that there had been an act of unlawful discrimination. The claimant can do that by reference to evidence adduced by the claimant or by the defendant. However, what has to be established is primary facts from which an inference can be drawn. See, generally, the decision of the Supreme Court in Ebofi v Royal Mail Group Ltd [2021] UKSC 33; [2021] 1 WLR 3863, especially at [14]-[15] and [26]-[30].

The three documents relied upon by the appellant are not, however, documents capable of establishing the necessary facts in this case. They do not demonstrate that the PCP adopted by the respondent is putting homeless households with disabled members at a particular disadvantage by having to wait longer than homeless households without a disabled member for the allocation of social housing under the respondent’s housing allocation scheme.

The All-Party Parliamentary Group report was relied upon as it received responses from persons in temporary accommodation (31 persons who were current or recent residents of temporary accommodation; there were a total of 81 responses). It was submitted that the responses showed that disability was what was described as a “recurring theme”, and that living in temporary accommodation had exacerbated these persons’ ill-health. The report referred to one case where a wheelchair user was placed in temporary accommodation that the person said was not suitable for a wheelchair user. The report also referred to respondents to the survey referring to the extent to which they had problems with accessing facilities in their temporary accommodation. The report was therefore concerned with problems about the quality of the temporary accommodation that had been provided (under Part VII) not the issue of comparison of the waiting times as between different groups before being allocated Part VI social housing.

The same is true of the other two documents. The Shelter report addressed what were considered to be problems of living in temporary accommodation. The response to the freedom of information question responded to requests for information about Part VII accommodation.

As the judge rightly concluded at paragraph 37 of her judgment, set out above, the evidence that was needed was evidence which established that the respondent’s allocation scheme included a PCP which put homeless households with a disabled member at a particular disadvantage as compared with homeless households without a disabled member. In particular, there needed to be evidence that the former group of persons were waiting longer in temporary accommodation (i.e. that provided under Part VII) than the other group. The material relied upon did not begin to establish facts from which such an inference could be drawn.

At the very most, all that the three items of evidence might do is suggest that there are, or may be, difficulties (at least, in some cases and in some local housing authority areas) with the quality or suitability of housing provided to homeless persons pursuant to Part VII. They do not begin to establish the material facts in this case, namely that one group of homeless households is waiting longer than another group before being allocated Part VI accommodation. The Judge was entitled to conclude that the material which the appellant sought to have admitted at the hearing below was not relevant and to decline to admit it.

The appellant sought to admit two further items of evidence before this court. One concerned a news report of a failure by the respondent to meet its duty under Part VII to secure suitable accommodation. It reports a person, described as a spokesperson for the respondent, saying that “We still have a lack of affordable housing in London and the South East and there are but a handful of properties that are suitable for those with additional needs”. The second item of evidence was an Ombudsman report into a complaint that the respondent had failed to secure suitable accommodation for a family pursuant to its duties to provide suitable accommodation under Part VII. It records a response from the respondent saying that it was estimated that there were at least 600 households in unsuitable temporary accommodation in the borough for a variety of reasons.

Both of those documents deal with the question of whether or not homeless households are being provided with accommodation pursuant to Part VII which is unsuitable. That evidence does establish the facts needed to enable an inference to be drawn that there is unlawful discrimination in the allocation of social housing under Part VI. The evidence might, depending on one’s view, establish that accommodation provided pursuant to Part VII is not suitable (in breach of the obligations imposed by the relevant provisions of Part VII). It might, depending on one’s view, suggest that if a particular group of homeless households were spending more time in Part VII accommodation than another group, any disadvantage associated with living in Part VII continued for longer. But it is not capable of establishing that one group of homeless households (i.e. those with a disabled member) are spending longer in Part VII accommodation, or waiting longer to be allocated social housing under Part VI, than another group of homeless households (i.e. those without a disabled member). For those reasons, although I have read and considered both items of evidence, I would not grant permission for the evidence to be adduced.