The case of R (on the application of) XC v London Borough of Southwark, brought to attention a case where the Local Authority’s allocation policy was held to be indirectly discriminate but justified and lawful.
In this such case, Ms XC had tried to argue the point that she had been unfairly discriminated against by Southwark, when she attempted to apply for transfer. She had argued against Southwark under three grounds, those being unfavourable treatment for her request to move, the priority stars that Southwark used to identify priority tenants, and discrimination against women. Her arguments against the priority stars included the fact that her disabilities, which were both physical and mental, made it significantly more difficult for her to be awarded the priority star of ‘working household’, which requires the householder to be engaged in paid employment for 16 hours per week. She also cited the lack of work available to her. Ms XC also put forward that her disability similarly made it difficult to obtain the ‘community contribution’ priority star, which required at least 10 hours of unpaid volunteer work for a community organisation, and went further to argue that these stars went against those tenants who are women as their unpaid caring responsibilities went unnoticed by the stars system because those responsibilities prohibited her from volunteering in the community or obtaining paid work.
Southwark argued that the Stars had to be considered in the overall allocation scheme and they relied upon the case of R (Ahmed) v Newham LBC (2009) UKHL 14 to argue for the principles in their scheme. The High Court however looked at the case of R (H and others) v Ealing London Borough Council (2016) EWHC 841 as it followed a similar scheme to Southwark’s and found that there, was indirect discrimination against those who were disabled; Indeed Southwark’s own “Pre implement Equality Analysis” found that disabled people are more than twice as likely to be unemployed as non-disabled people, and thus evidenced discrimination against those with disabilities especially those suffering from mental health issues.
The real question came as to whether the indirect discrimination by Southwark could be justified as being a proportionate way of achieving a legitimate aim.
In considering this the 4 stage test used in Bank Mellat v HM Treasury (No 2) (2014) AC 700 must be applied. That being.
(1) is there a sufficiently important objective (i.e. legitimate aim), (2) is the measure rationally connected to that objective, (3) is it the least intrusive measure which could be used without unacceptably compromising the objective (1) and (4) in adopting the measure has the defendant struck a fair balance between the importance of securing the objective and its particular effects on the claimant’s rights?
The main issues for the Claimant were whether the policy was the least intrusive measures; and if a fair balance was struck when awarding stars. To that end the court held that in line with government guidance from 2012, stated priority should be given to those working in the community or those working for the community, and as well the scheme had to involve discrimination to reach its stated aims, which is an important part of any scheme based on reasonable preference.
The court went on to apply the general principles in R (Ahmed) v Newham LBC [2009] UKHL 14 namely not interfering with priority decisions in allocation schemes absent irrationality or not meeting statutory requirements.
The court held that although the policy was discriminatory against the claimant, there was no better alternative which would not undermine the legitimate objective identified by the council, that being those people in work or those who volunteer shall be given priority status. The court went on to state that by widening the pool of priority to those who provide unpaid care for others and extending the working household to those who do not work due to different types of disability, it would cause undue conflict between the two classes. And as the High Court stated “The wider the class the less valuable the benefit of being within it.”
The claim was therefore dismissed as the defendant had created a scheme which was the least intrusive as possible and which struck a fair balance, achieving the legitimate aim of giving priority for working households.