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

The judgment below dealt with a number of grounds some of which are no longer pursued in this appeal. For present purposes, the reasoning of the Judge on the issues that arise on appeal was as follows.

First on the question of indirect discrimination contrary to section 19 of the 2010 Act, and the admissibility of the two reports and response to the freedom of information request, the Judge concluded:

“69.

In order to further his claim that the allocation scheme with respect to this specific PCP, namely that applicants owed the main housing duty are excluded from Health and Wellbeing points, RR needs to establish a prima facie case that disabled households are put at a particular disadvantage when compared with non-disabled households. That is not the case. The PCP applies to disabled and non-disabled households alike. There is no difference in treatment and no evidence that disabled households are disproportionately impacted.

70.

While it is said on behalf of RR that it is difficult to obtain the evidence to establish that a household with a disability is disadvantage as compared with a household without a disability, it is necessary to establish a causal link between the PCP and the alleged disadvantage. As is set out in TX: "Having identified the pools for comparison, it is necessary to compare the impact of the PCP on each group. Indirect discrimination requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. However, there is no requirement that every member of the group is disadvantaged." In the case of R (Willott) v Eastbourne BC [2024] EWHC 113, Ellenbogen J. set out that it is necessary to show statistical evidence or other evidence to the effect that a greater proportion of those having disabilities are disadvantaged. The additional evidence that RR endeavoured to have admitted (which I refused as set out above) would not have assisted RR.

71.

RR cannot establish that there is any disadvantage. Any evidence would need to be germane to the PCP and it is not sufficient for bald assertions to be made in order to make out a prima facie case. In the circumstances ground 6 also cannot succeed.”

In relation to the claim that the respondent had failed to make reasonable adjustments as required by section 20 of the 2010 Act, the Judge noted that the essence of the claim was “that it would be reasonable to allow a household with a serious disability to gain additional priority over non-disabled people in the same homelessness or threatened with homelessness cohort”. She concluded that:

“67.

The question of whether an adjustment is reasonable is an objective question for the court, bearing in mind all the circumstances of the case (see Dyson LJ in Royal Bank of Scotland v Allen [2009] EWCA Civ 1213). Even if RR were able to make out that his disabled household required an adjustment, in my judgment it would not be a reasonable adjustment in these circumstances to provide the disabled household with additional points as that would run counter to the allocation scheme that the local authority is entitled to have devised for the purpose of ensuring that those who have a high priority (as set out in the scheme and explained above) have access to housing. Those who are homeless or threatened with homelessness have rights pursuant to the provisions of Part 7 of the HA 1996. Any discriminatory affect caused by the allocation scheme not awarding Health and Wellbeing points (either because the Part 7 rights means that an applicant could not fall within the "high" category or because "low" and "medium" Health and Wellbeing points are not available to applicants who have points awarded as being Homeless or threatened with homelessness) is justified because the local authority can resolve the homeless person's homelessness by making an offer of suitable accommodation under Part 7 of the HA 1996 . The only adjustment would be to place a household with disability into the Health and Wellbeing category, but that would run entirely counter to the policy devised by the local authority which is a matter for the local authority to determine (see Ahmed).”

In relation to section 149 of the 2010 Act, the Judge noted that the respondent relied upon the fact that an equality impact assessment was undertaken when the allocation scheme was approved and that, in applying the scheme since its approval, the respondent had been considering the needs of individual applicants including those with a disability. She recorded that the appellant:

“contends that [the respondent] is in breach of the [public sector equality duty] as there is a failure to monitor or record how many households with disabilities are owed the main housing duty by the [respondent], and therefore have the protections afforded by Part 7 [of the 1996 Act]; [the respondent does not record how many households with disabilities are in unsuitable accommodation and how long such households typically wait to be housed”.

The Judge noted that, after the close of submissions, the appellant had made reference to a report from the Equalities and Human Rights Commission (“the EHRC”). She concluded that there was a duty to monitor or collect data, and that the respondent had failed to comply with that duty and, to that extent, it was in breach of its obligation under section 149 of the 2010 Act. She concluded that:

“79.

I accept Enfield's submissions that the EHRC, while highlighting the very real difficulties faced by households with a disability, does not provide the evidence that RR is seeking. It does not show that there is a disproportionate impact upon households with a disability. However, it does provide support for the contention raised on behalf of RR that Enfield is failing to collect and analyse data relating to the impact of allocation decisions upon households with a disability and, in my judgment, Enfield has failed in fulfilling its PSED obligations in this respect.

80.

This judicial review challenge is therefore partially made out under Ground 7, namely the failure on the part of Enfield in fulfilling its PSED obligations under section 149 of the EA 2010 by its failure to both monitor and record statistics relating to the allocation of housing to disabled households. It is not accepted by Enfield that the PCP puts any group with a protected characteristic at any disadvantage, and it is Enfield's case that in dealing with housing it is focussed on disability. What Enfield does not have is the data to support its position and the duty of inquiry is therefore not satisfied.”

The judge, however, concluded that section 31(2A) of the 1981 Act applied. That provides that a court must refuse relief if it is highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. She concluded that the respondent’s “determination would not have been different had it complied with its duty of inquiry under section 149” of the 2010 Act (see at [81] of the judgment). The Judge therefore refused a remedy in relation to this ground. She dismissed the claim.