RR v London Borough of Enfield: Court of Appeal dismisses housing allocation discrimination challenge

The Court of Appeal has dismissed an appeal challenging a local authority's housing allocation scheme on discrimination grounds, clarifying the evidentiary requirements for establishing indirect discrimination under the Equality Act 2010 in housing cases.

RR, a refugee caring for his disabled wife who sustained life-changing injuries in a car accident, was owed the main housing duty under section 193 of the Housing Act 1996. Enfield Council's allocation scheme awarded him 200 points as a homeless household. However, the scheme prohibited homeless applicants from accruing additional points (50 or 150) for low or medium health and wellbeing needs, though such points were available to non-homeless applicants.

RR argued this provision constituted indirect discrimination under section 19 of the Equality Act 2010, claiming homeless households with disabled members waited longer for Part VI social housing allocation than homeless households without disabled members. He also alleged failures to make reasonable adjustments under section 20 and breaches of the public sector equality duty under section 149.

The evidential difficulty

Lord Justice Lewis, delivering the leading judgement, identified a fundamental evidential gap. The claim required proof that the provision, criterion or practice (PCP) put homeless households with disabled members at a "particular disadvantage" compared with homeless households without disabled members—specifically, longer waiting times for Part VI accommodation.

The appellant lacked statistical evidence demonstrating this disproportionate impact. He sought to rely on reports concerning temporary accommodation quality and statements about housing shortages, but the Court found these irrelevant to the comparison required. The evidence addressed Part VII temporary accommodation conditions rather than comparative waiting times for Part VI allocations between the two relevant groups.

Section 136 of the Equality Act 2010 requires claimants to establish primary facts from which discrimination could be inferred, following Ebofi v Royal Mail Group Ltd. Mere assertions, without supporting evidence of disproportionate impact, proved insufficient.

Causation and reasonable adjustments

The Court identified a second critical issue: no causal connection existed between the PCP and the alleged disadvantage. Evidence suggested any waiting time related to housing shortages generally, not the inability to accrue additional health points.

Regarding reasonable adjustments, the Court held that even assuming the duty arose, the adjustment sought—giving disabled households additional priority contrary to the allocation scheme—was unreasonable. Section 166A(14) of the Housing Act 1996 requires authorities to allocate housing only in accordance with their adopted schemes. Departing from a lawful scheme would undermine the statutory framework.

Public sector equality duty

The judge below found a breach of section 149 through failure to monitor allocation statistics. The Court of Appeal disagreed, emphasising that section 149 imposes a duty to have "due regard" when exercising specific functions, not a freestanding monitoring obligation.

The relevant functions were adopting the allocation scheme (where an equality impact assessment was conducted) and reviewing the points allocation to RR (where the decision-maker properly considered disability issues but correctly applied the scheme). The Court distinguished R (DMA) v Secretary of State for the Home Department, where monitoring was necessary to ensure statutory accommodation duties were discharged through contractors—an entirely different context.

Implications

This decision reinforces that indirect discrimination claims require concrete evidence of disproportionate impact, not assumptions or general concerns about accommodation quality. It clarifies that local authorities' statutory obligation to follow their housing allocation schemes constrains what adjustments might be considered reasonable, and that section 149's equality duty operates within the context of specific functions rather than imposing general monitoring requirements.

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