CA-2024-002185 - [2025] EWCA Civ 1049

I do not consider that the various statistical analyses put forward do evidence circumstances from which it can be inferred that women with a child or children, or women generally, are being put at a particular disadvantage as compared with men.

In essence, the first submission made on behalf of the appellant is that the placing of households on the database and leaving them in unsuitable accommodation put households which included women with a child or children at a particular disadvantage as compared with men. That was said to be capable of being inferred from, among other things, the proportion of households comprising a female parent with a child or children being provided with temporary accommodation (that is, accommodation under Part VII of the 1996 Act), and also the increase in the proportion of such households in unsuitable accommodation in Info 1 as compared with the proportion of such households in temporary accommodation. The evidence does not, however, begin to establish that those inferences can be drawn.

Considering each individual category shown in the table, the evidence does not show any good evidence of an adverse differential effect. The proportion of households comprising a man with a child or children remain broadly constant in all categories. It comprises, approximately, 9.5% of single men with a child or children in the categories of the total number of people in temporary accommodation, 9.5% in the total for Info 1, 9.34% for unsuitable accommodation in Info 1, 9.35% for those in the total for Info 2 and 9.4% for those in unsuitable accommodation in Info 2. The proportion of women with a child or children in all of the categories also remains broadly constant. The evidence does not justify the drawing of any inference that households with a single female parent with a child or children are more likely to be in the group of unsuitable accommodation households than a single male parent with a child or children.

Nor does the increase in the proportion of women with a child or children shown in Info 1 as being in unsuitable accommodation, as compared with the proportion of such households in temporary accommodation generally, permit such an inference to be drawn. It is correct that there is an increase. The proportion of single female parent with a children or children is 34.2% of households provided with temporary accommodation (i.e. accommodation provided under Part VII). The proportion of such households in unsuitable accommodation is higher, at 50.4% in Info 1 (and 55.8% in Info 2). But the proportion of households with a male single parent and a child or children also increases from being 3.6% of the total number of households provided with temporary accommodation to 5.2% of the number of households in unsuitable accommodation in Info 1 (and 5.8% in Info 2). There is a higher proportion of single (male and female) parents in the group to whom a duty is owed under section 193(2) than in the “total temporary accommodation” category – because such persons are more likely to be in priority need and be owed the duty in section 193(2). But the proportions of women with a child or children in the group owed the section 193(2) duty is broadly constant, as is the group of men with a child or children. There is nothing to indicate that a higher proportion of women with a child or children, as compared with men with a child or children, are being assessed as owed the section 193(2) duty but are being shown on the database as being unsuitable accommodation.

Similarly, the alternative submissions of the appellant, and those of Ms Davies for Shelter, do not evidence circumstances from which it could legitimately be inferred that being on the data base and in unsuitable accommodation affects a greater proportion of women than men. Those submissions rely on the figures showing the change between all men and women, including lone men and lone women, in the groups of persons provided with accommodation generally under Part VII and those owed a duty under section 193(2) but in unsuitable accommodation. Lone women and lone men are less likely to be owed a duty under section 193(2) as they are less likely to have a priority need (as shown by the far smaller number of lone men and women being on the Info 1 and Info 2 database as being in unsuitable accommodation – although pregnant women, and people homeless due to domestic violence, which are statistically likelier to be female, are groups having priority need, along with vulnerable men and women). Once the figures for the groups of lone men and lone women are excluded from the overall calculation, and the groups of such lone men and lone women in unsuitable accommodation are considered separately, the figures do not evidence any adverse effect for women as compared with men.

Considering the position of lone women and lone men, there is a slight change with an increase in the proportion of lone male households in some categories and a decrease in the proportion of female lone households but again with relatively small numbers involved. The proportion of households with single men constitute the following proportions for each category: 47.3%% of the total number households with a lone person provided with temporary accommodation under Part VII, 46.5% of such households in the total showed in Info 1, 46.7% of the total of such households in unsuitable accommodation shown in Info 1, 50% of the total of households in Info 2, and 33.3% for households with lone persons in unsuitable accommodation in Info 2. The one category where there may be thought to be a significant difference between lone women and lone men is Info 2 unsuitable where there are only three people recorded, 2 women and 1 man, and where the numbers are so small that they cannot be regarded as statistically robust.

What is being measured in this case is whether the proportion of women who are owed a duty under section 193(2) which is not being complied with (so they are in unsuitable accommodation) is higher than the proportion of men in such circumstances. Across all categories, including single women with a child or children, or lone women, the proportion remains broadly the same. There is no good evidence that being on the database and being in unsuitable accommodation give rise to any adverse differential affecting women more than men.

The statistical material does not therefore provide evidence from which it could be inferred that a higher proportion of women with a child or children, or women generally, as compared with men with a child or children, or men generally, are put at any disadvantage. We were shown no other evidence from which such an inference could be drawn.

For completeness, I do not accept the submission made by Mr Sprack that the appellant had established facts from which it could be inferred, in the absence of any other explanation, that the respondent had contravened section 136 of the 2010 Act. The appellant has not begun to do so.

Those considerations deal with the question of the effect or impact of the PCP relied upon on women as compared with men. Ground 3 is therefore not made out and, as a consequence, the appeal must be dismissed as the appellant has not established any disparate impact (i.e. that the PCP puts women as compared with men at a particular disadvantage).

I do not consider however that the appellant has established any causal link between the PCP relied upon and the particular disadvantage said to be suffered by women. The PCP relied in this appeal upon is a composite one – operating a database for homeless applicants who seek a transfer and providing to some or all of those applicants unsuitable accommodation while they remain on the list. The operation of the database on the facts as found by the judge does not put any person at a disadvantage. It simply records information about individuals, including those individuals to whom a duty is owed under section 193(2) and who are not being provided with suitable accommodation in compliance with that duty. The fact that an applicant is, or is not, on the database is not what causes what is said to be the particular disadvantage here.

An applicant will be owed a duty whether he or she is on the list or not. The obligation to secure suitable accommodation will arise when the respondent accepts that the requirements of section 193(2) are met irrespective of whether or not he or she is placed on the database. Similarly, the fact that a person is being provided with accommodation which is unsuitable and does not satisfy the requirements of section 193(2) has nothing to do with being placed on the database. The failure to comply with the section 193(2) duty arises out of the fact that the respondent says it does not have enough accommodation, particularly the larger accommodation required in many cases, to enable it to fulfil its duty. Being placed on the database is not what causes the person to be in unsuitable accommodation. Being on the database does not, of itself, put a person at a particular disadvantage. Indeed, the evidence of the respondent is that placing a homeless applicant on the database is a means of seeking to address the fact that the respondent is not complying with its public law obligation to secure suitable accommodation by ensuring it had up to date information which would enable it to secure suitable accommodation should it become available. I do not think therefore that the PCP relied upon does put women generally, or women with a child or children, at a particular disadvantage. I note that that is consistent with the submissions of Shelter which is that placing someone on a database does not, of itself, amount to putting the person at a particular disadvantage.

There may an issue as to whether leaving persons in unsuitable accommodation in breach of section 193(2) is capable of amounting to a PCP and if so, whether that has placed women, or women with a child or children, at a particular disadvantage, for example because women are being left longer in unsuitable accommodation as compared with men (or vice versa). That, however, is not the PCP that is relied on here. Further, and significantly (as the judge pointed out) there is no evidence that men are spending less time in unsuitable accommodation than women (or vice versa).