Length of Residence Housing Allocation Policy Unlawful, High Court Rules

Local authorities are entitled to establish criteria by which priorities in respect of housing waiting lists are set. However, as an important High Court ruling made clear, any such criteria that have a potentially discriminatory impact must be proportionate and rigorously justified.

The case concerned that part of an urban council’s housing allocation policy which afforded priority to homeless people who had lived in its administrative area for at least 10 years continuously (the residency requirement).

Three members of the Irish traveller community – a single mother, her young child and a father who bore care responsibilities for a disabled daughter – challenged the residency requirement on the basis that it breached the anti-discrimination provisions of the Equality Act 2010 in respect of the protected characteristics of race, sex and disability.

In declaring the residency requirement unlawful, the Court noted that the deference that judges are required to show to a decision maker’s conclusion that a measure is proportionate is only appropriate where a balancing exercise, as between the discriminatory impact and legitimate aims, has actually been carried out.

There was little evidence that the council had adequately performed such an exercise and it had thus failed to establish that the policy was justified. The Court also found that the residency requirement, insofar as it affects children, breached the council’s duties under Section 11(2) of the Children Act 2004.

The Court, however, upheld the lawfulness of a further allocation policy that sought to give priority to working households on low incomes. That policy was focused and limited in its effect and a fair balance had been struck between any potential discriminatory impact and the council’s legitimate objectives of raising levels of aspiration and ambition, and encouraging those who can work to do so.