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Victory for local democracy: High Court Judge “stepped over the line” when quashing working household priority scheme

In October 2013, pursuant to a decision by its Cabinet, the London Borough of Ealing amended its housing allocation policy by creating a "working household priority scheme" ("the WHPS"). Under the WHPS, approximately 15% of allocations were reserved for working households.

A number of households on the waiting list who comprised women, disabled and elderly people who were not in employment brought a judicial review seeking to quash the WHPS on the ground that it discriminated against them indirectly. It was common ground that women, disabled and elderly people would on average find it harder to qualify for working household status under the WHPS and therefore would be disproportionately excluded from obtaining housing under it.

In the High Court, the claim succeeded on every point: HHJ Waksman QC held that the WHPS was unlawfully discriminatory, contrary to s.29 of the Equality Act 2010 and article 14 of the ECHR, and that Ealing was in breach of the PSED and the s.11(2) of the Children Act 2004 "due regard" obligations in introducing and maintaining the WHPS. He quashed the WHPS.

Ealing appealed to the Court of Appeal. It argued that the judge had ignored a number of important safety valves within the WHPS and the wider allocation scheme, and that fundamentally he had failed to accord sufficient respect to Ealing's policy decision. Matt argued on its behalf that this was a political decision taken by elected and democratically accountable representatives, which ought to be upheld by the court unless it was unreasonable. He also argued that the judge's approach, that Ealing would need to maintain statistics about the effectiveness of the WHPS in order to justify it, would stultify locally accountable decision making.

Agreeing with Matt's submissions, the Court of Appeal, consisting of the Master of the Rolls and Lord Justices Davis and Underhill, held that the judge's approach "steps over the line of unacceptable incursion by the court into the practical running of a housing allocation scheme." They were persuaded that the judge had failed to "grapple at all with Ealing's case" about the safety valves contained within its allocation scheme, considered as a whole.

Although the Court of Appeal upheld the judge's decision that Ealing had not done enough to comply with the PSED, they declined to quash the WHPS. Instead, they left it to Ealing to take account of the guidance contained within their judgment when carrying out an ongoing review of its allocation scheme.

The Court of Appeal also overturned the judge's finding that Ealing had breached s.11(2) of the Children Act 2004, accepting Matt's submission that the criticism made by the claimants was "tick-boxing".

Lord Justices Davis and Underhill would have held that allocation schemes fall outside the ambit of article 8 of the ECHR, so that article 14 is not applicable. However, given that the Court of Appeal overturned the judge's decision that the discrimination was unjustified, this did not need to be decided.

The full judgment of the Court of Appeal [2017] EWCA Civ 1127 is here.

Matt Hutchings QC represented the London Borough of Ealing.