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

It is convenient to take the second and third issues together. Ms Davies KC, with Mr Bano, for the appellant identified the PCP as the provision in the respondent’s housing allocation scheme which prohibited or disentitled homeless applicants from accruing additional points in the case of health or wellbeing. She submitted that that requirement placed homeless households with a disabled member at a particular disadvantage as compared with homeless households which did not include a disabled member. The disadvantage was the fact that homeless households with a disabled member waited for a longer period before being allocated social housing than homeless households without a disabled member. Ms Davies submitted that there were fewer accessible properties available under the allocation scheme. Homeless households with a disabled member, therefore, had a smaller pool of suitable properties for which they could bid as compared with homeless households with no disabled members who had a greater pool of properties for which they were able to bid. Consequently, she submitted, homeless households with a disabled member were waiting longer in Part VII accommodation before being allocated a property under Part VI of the 1996 Act.

Ms Davies accepted that she had no statistical evidence to demonstrate the proportion of persons in each group (i.e. homeless households with, and without, a disabled member) nor as to the time that each group waited before being allocated social housing under Part VI of the 1996 Act. However, she submitted that section 136 of the 2010 Act allowed the court to infer that there had been a contravention of the 1996 Act. Here, she submitted, the evidence that the Judge excluded demonstrated that a high proportion of people with disabilities lived in unsuitable temporary accommodation, that that was associated with an exacerbation of physical and mental health conditions or difficulties in accessing facilities, and that temporary accommodation for homeless persons tended to be of very poor quality and overcrowded.

Ms Davies also sought to rely on two items of evidence that came into existence after the hearing below. First, she relied upon a comment by a spokesperson from the respondent recorded in a BBC news report indicating that there was a significant lack of affordable housing in London and the south-east and there were only a handful of properties in the borough of Enfield suitable for those with additional needs. She also relied on a response from the respondent, recorded in the determination of the Ombudsman, that there were at least 600 households in unsuitable temporary accommodation (which was said to be a reference to accommodation provided under Part VII of the 1996 Act).

Ms Davies submitted that all that evidence allowed the inference to be drawn under section 136 that homeless households with a disabled member had fewer properties to apply for and waited longer in unsuitable accommodation. She relied upon the length of time that the appellant had been in temporary accommodation (that is, Part VII accommodation) which she described as unsuitable.

Mr Paget, for the respondent, submitted that the Judge was correct to dismiss the claim under section 19 of the 2010 Act. The issue here was whether the PCP put homeless households with a disabled member at a particular disadvantage as compared with homeless households without a disabled member, in the allocation of housing under Part VI. The appellant had not been able to identify any evidence that showed that the PCP did have a disproportionate impact. The Judge had correctly analysed the evidence which she refused to admit and was entitled to conclude that it was not relevant to the comparison between the two relevant groups. Evidence about what disabled persons thought about the quality of accommodation under Part VII was not relevant to the comparison. The response to the freedom of information request contained information about Part VII accommodation, not Part VI, and did not provide information about the relevant comparison. The same was true of the new evidence on which the appellant sought to rely. Further, section 136 of the 2010 Act required proof of primary facts from which an inference could be drawn that the respondent had contravened the 2010 Act. It was not enough simply to assert that.