Could your housing allocations policies be discriminatory under the Equality Act 2010?
A recent case has illustrated that even where a housing allocations policy is used with the best intentions, and when the equality implications of the policy appear to have been considered in compliance with equalities legislation, a social landlord may still fall foul of the Equalities Act 2010.
‘Working households’ and ‘model tenants’
The case in question – (R. (on the application of H) v Ealing LBC  EWHC 841 (Admin)) – found that an amendment in October 2013 to a London Council’s housing allocations policy, which reserved 20% of available tenancies for “working households” and “model tenants”, was unlawfully discriminatory under the Equality Act 2010.
The allocations policy was intended to incentivise tenant employment and good behaviour by moving qualifying tenants from low priority to the highest priority category. The Council categorised working households as households where at least one tenant was working 24 hours or more per week for 12 of the last 18 months. Model tenants were those who had previously fully complied with a Council tenancy and were now seeking more appropriate accommodation.
The claimants in the court action, who included women in single parent families, sufferers of disabilities and their carers, and the elderly, challenged the Council’s policy, arguing it was in breach of the Equality Act and the European Convention on Human Rights (ECHR). The claimants argued that people in those groups would generally struggle to meet the working criteria due to either an inability to work or other time-intensive commitments and therefore the scheme was discriminatory against them.
Under the Equality Act an organisation cannot adopt a policy which indirectly has a negative effect on a person because they have protected characteristics, such as age, disability and sex. Under the ECHR it is unlawful to discriminate against people with protected characteristics in connection with other rights under the ECHR, in this case the respect for private and family life, home and correspondence.
In deciding that the policy was unlawful, Judge Waksman QC found:
• The working household policy indirectly discriminated against the disabled, the elderly and women contrary to the Equality Act 2010 and the ECHR.
• The model tenant policy indirectly discriminated against tenants who do not already hold council tenancies contrary to the ECHR, particularly against the children of single parent families.
Additionally it was found that the Council’s equalities analysis of the policy in approving the scheme under its public sector equality duty (PSED) was inadequate. The Council should have had due regard to the possible discriminatory effect of the new scheme rather than to simply consider the overall allocations policy as a whole.
A scheme which does indirectly discriminate can be justified if it is trying to achieve a legitimate aim but only where the measures adopted to reach that legitimate aim are the least intrusive and strike an appropriate balance between the legitimate aim and ensuring equal treatment.
Implications for Scottish social landlords
Although this case does not apply directly to local authorities and housing associations in Scotland, the same legislative duties apply north of the Border. The case illustrates that, even when the equality implications of a housing allocations policy appear to have been considered in compliance with equalities legislation, a social landlord may still fall foul of the Equalities Act 2010.
Scottish social landlords should therefore take care to consider whether potential letting initiatives – notwithstanding that they are being introduced with the best of intentions – and other policies are potentially indirectly discriminatory against groups who are protected by virtue of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.
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