Social housing allocation policies that prioritise one group of tenants over another can be discriminatory – but they can also be justified. The Court of Appeal made that point in upholding policies that favoured working households and model tenants.
The case concerned a local authority that set aside 15 per cent of its housing stock for households in which at least one member was gainfully employed. Existing tenants who paid their rent on time, avoided anti-social behaviour and kept to the terms of their leases were also granted priority when seeking transfers to other homes. The latter policy was applied to 5 per cent of the housing stock.
The council had carried out an equality impact assessment and piloted both policies before concluding that they did not appear to have a discriminatory impact. It said that the objectives of the policies were to incentivise tenants to find work, or return to work, and to encourage good tenant behaviour.
Objectors, however, mounted a judicial review challenge to the working households policy on the basis that it indirectly discriminated against women, the elderly and the disabled, who were less likely to be in work. Both policies were also said to conflict with the council’s public sector equality duty. Those arguments succeeded before a judge and the policies were quashed.
In ruling on the council’s challenge to that decision, the Court accepted that the working households policy inevitably resulted in indirect discrimination. In upholding the appeal, however, it found that the judge’s approach had been too exacting and that he had not been entitled to reject the council’s defence that such discrimination was justified by the legitimate aim of achieving social benefits.
The objectors’ arguments that the policies violated the European Convention on Human Rights also fell on fallow ground. Given that the council’s housing allocation scheme was currently under review, the Court found that no useful purpose would be served by further consideration as to whether the policies were in fact justified. The decision to quash them was nevertheless overturned.