RR, R (on the application of) v The London Borough of Enfield

This appeal concerns the allocation of housing by a local housing authority under the provisions of Part VI of the Housing Act 1996 (“the 1996 Act”). Such authorities are required to adopt an allocation scheme for determining priorities in the allocation of housing. The respondent, the London Borough of Enfield, adopted such a scheme. That scheme provided that particular categories of persons would be awarded a certain number of points and they could use those points to bid for appropriate housing that became available. Properties would be allocated to those with the greatest number of points or, if each applicant had the same number of points, to the person that had been on the waiting list longest.

The allocation scheme provided that homeless persons living in accommodation provided by the respondent pursuant to a duty under section 193 of the 1996 Act be awarded 200 points. In addition, persons with a low or medium health and wellbeing need could be awarded 50 or 150 additional points respectively. Those who were homeless, however, were not eligible for the award of these additional points.

In brief, the appellant, RR, is a person who is owed a duty under section 193 of the Act. He is also on the waiting list for the allocation of accommodation under Part VI of the Act. He submits that the provision of the allocation scheme, whereby homeless persons could not obtain additional points for a low or medium health and wellbeing need, amounted to a provision, criterion or practice (referred to as a PCP) within the meaning of section 19 of the Equality Act 2010 (“the 2010 Act”) and is discriminatory. In particular, the appellant submits that the PCP puts homeless households containing a disabled person (such as the appellant’s household) at a particular disadvantage when compared with homeless households with no disabled members. The particular disadvantage is said to be that homeless households with a disabled member wait longer for the allocation of housing under Part VI as compared with homeless households without a disabled member. The appellant submits that the respondent cannot show that that PCP is a proportionate means of achieving a legitimate aim. He also submits that the respondent had failed to make reasonable adjustments in accordance with its duty under section 20 of the 2010 Act by failing to give him additional preference. He also submits that the respondent was in breach of its obligation under section 149 of the 2010 Act to have due regard to specified equality considerations.

HHJ Walden-Smith (“the Judge”) dismissed the claims under sections 19 and 20 of the 2010 Act. She refused to admit three categories of evidence, namely, a January 2023 All-Party Parliamentary Group report on Households in Temporary Accommodation, an October 2023 report of Shelter and the respondent’s response to a freedom of information request. The Judge found that the respondent was in breach of its obligations under section 149 of the 2010 Act in failing to monitor and collect statistics relating to the allocation of housing to households with a disabled person. She refused a remedy as the decision would not have been different if the respondent had complied with what the Judge described as its duty to monitor and record statistics, applying the provisions of section 31(2A) of the Senior Courts Act 1981 (“the 1981 Act”).

The appellant has permission to appeal on four grounds, namely:

The appellant also sought permission to adduce new evidence in the form of statements made by the respondent and recorded in a BBC news report and a report of the Local Government and Social Care Ombudsman (“the Ombudsman”).

By a respondent’s notice dated 25 March 2025, the respondent seeks to uphold the decision on an additional ground, namely that the Judge erred in finding that there had been a breach of section 149 of the 2010 Act. Finally, by an application notice dated 18 September 2025, the respondent seeks an order dismissing the appeal as it has become academic because the allocation scheme was amended in April 2025 and because the appellant was no longer registered under the scheme as he has obtained a private-sector tenancy.

Part VI of the 1996 Act deals with the allocation of housing accommodation provided by the local authority or by those providing social housing. Section 166A requires every local housing authority in England to adopt a scheme for determining priorities in the allocation of housing and provides that housing shall not be allocated except in accordance with that scheme. Section 166A contains detailed provisions governing the content of a scheme but, so far as material, provides:

“(1)

Every local housing authority in England must have a scheme (their “allocation scheme”) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. For this purpose “procedure” includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken.

(2)

The scheme must include a statement of the authority's policy on offering people who are to be allocated housing accommodation—

(a)

a choice of housing accommodation; or

(b)

the opportunity to express preferences about the housing accommodation to be allocated to them.

(3)

As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to—

(a)

people who are homeless (within the meaning of Part 7);

(b)

people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);

(c)

people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;

(d)

people who need to move on medical or welfare grounds (including any grounds relating to a disability); and

(e)

people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).

(4)

The scheme may also be framed so as to give additional preference to particular descriptions of people within one or more of paragraphs (a) to (e) (being descriptions of people with urgent housing needs)…

…..

(6)

Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation—

(a)

to a person who makes a specific application for that accommodation;

(b)

to persons of a particular description (whether or not they are within subsection (3)).

…..

(14)

A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.”

Part VII of the 1996 Act deals with homelessness. Different duties are imposed on local housing authorities in respect of particular categories of persons found to be homeless or threatened with homelessness. For present purposes, it is necessary only to note the duty in section 193(2) (sometimes referred to as the “main” or the “full” housing duty) which is owed to a person who is homeless, eligible for assistance, has a priority need as defined by the 1996 Act and who has not become homeless intentionally. In such circumstances, section 193(2) provides that:

“(2)

Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.”

The accommodation must be suitable (section 206) and available for occupation by the applicant together with any other person who normally resides with him as a member of his family (section 176(1)). An individual who is dissatisfied with a decision of a local authority, including a decision as to whether accommodation is suitable, may seek a review of the decision by the authority and, if still dissatisfied, may appeal to the county court: see sections 202 and 204 of the 1996 Act. As Lord Sales observed in R (Imam) v London Borough of Croydon [2023] UKSC 45; [2025] AC 335:

“21.

Parts VI and VII of the Act deal with different topics and it has been observed that the duty to secure that accommodation is available for a homeless family under section 193(2) is “quite separate from” the allocation of council housing under Part VI : Birmingham City Council v Ali[2009] 1 WLR 1506 (“Ali”), paras 14 and 47, per Baroness Hale of Richmond. But they interact. So, for example, a person owed the main housing duty under Part VII is included within the priority groups specified in Part VI and, if that results in an allocation, the main duty ceases: section 193(6)(c) and section 166A(3)(b). An allocation under Part VI is by way of the grant of a secure tenancy, but such a tenancy may not be granted when the local housing authority allocates accommodation in fulfilment of its duty under section 193(2): paragraph 4 of Schedule 1 to the Housing Act 1985.”

A service-provider, such as a local housing authority, must not discriminate against a person in the provision of a service or in the exercise of a public function (section 29 of the 2010 Act). Section 19 defines when a service-provider indirectly discriminates against a person. It provides, so far, as material, that:

“(1)

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2)

For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a)

A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)

it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)

it puts, or would put, B at that disadvantage, and

(d)

A cannot show it to be a proportionate means of achieving a legitimate aim.

(3)

The relevant protected characteristics are—

…

disability;

…."

Section 20 of the 2010 Act also imposes a duty on a public body to make reasonable adjustments in relation to disabled persons. The section provides, so far as material, that:

(1)

Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2)

The duty comprises the following three requirements.

(3)

The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

……”

Section 21 provides that a failure to comply with the first requirement (or the second or third requirements) is a failure to comply with a duty to make reasonable adjustments. Section 21(2) provides that a person “discriminates against a disabled person if [the person] fails to comply with that duty”.

Section 136 of the 2010 Act deals with the burden of proof in proceedings concerning an alleged contravention of a provision of the Act. It provides, so far as material that:

“(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3)

But subsection (2) does not apply if A shows that A did not contravene the Act.”

Finally, section 149 of the 2010 Act imposes a duty, referred to as the public sector equality duty, to have due regard to certain specified equality considerations when exercising its functions. Section 149(1) provides that:

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to—

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

The material facts can be stated shortly. The appellant was born on 31 March 1985 and is now aged 40. He is married with two young children and is a carer for his wife, ED. The appellant came from Iran about 25 years ago and was granted refugee status. The appellant married ED who was living in Iran. They had their first child in 2020. On 10 March 2021, ED was given permission to join RR in the United Kingdom as his spouse. Sadly, a few days later, ED was seriously injured in a car accident in Iran when she sustained brain damage and life-changing injuries. Those problems have left her with mobility problems, problems with her vision and dizziness and have left her with constant pain in her legs, lower back and pelvis. The appellant’s wife and child subsequently came to the United Kingdom. Their second child was born in the United Kingdom in 2023. Prior to his wife’s arrival in the United Kingdom, the appellant was working as a taxi driver. When ED arrived in the United Kingdom, the appellant became her primary carer.

On 8 November 2022, the appellant and ED applied for housing assistance from the respondent. The respondent treated that as an application for homelessness assistance pursuant to the provisions of Part VII of the 1996 Act. The appellant and his family were initially placed in bed and breakfast accommodation between 18 November 2022 and 9 March 2023. On 17 February 2023, the respondent accepted that the appellant was owed a duty under section 193(2) of the 1996 Act (the full, or main, housing duty). In March 2023, at a time when the appellant and ED had one child, the family were moved into a one-bedroom flat pursuant to the duty under section 193(2) of the 1996 Act. In June 2023, following the birth of the appellant’s second child, the respondent determined that a one-bedroom flat was not suitable. An occupational therapy assessment dated 7 September 2023 described ED’s needs and recommended ground floor accommodation with a wet room. Following the hearing in the court below, alternative accommodation was offered.

Early this year, the appellant was offered a private sector tenancy. Acceptance of that tenancy, subject to any application for review or appeal, will bring the duty under section 193(2) to an end (section 193(7AA) of the 1996 Act). The appellant has accepted the offer of a tenancy but sought a review of the decision pursuant to section 202 of the 1996 Act.

When the appellant applied for housing assistance in November 2022, the respondent also placed the appellant on the housing register for persons seeking accommodation under Part VI of the 1996 Act. Housing is allocated in accordance with the respondent’s housing allocation scheme. That scheme was adopted by the respondent on 30 September 2020, following the carrying out of an equalities impact assessment for the purposes of section 149 of the 2010 Act. It was amended in July 2021.

Section 1 of the allocation scheme provided an introduction. It explained that the respondent was obliged to publish how it intended to “make sure that social housing goes to those who need it most”. It said that the scheme was designed:

"to give priority for housing to those people that are most in need of help. In looking at need, we want to ensure that we look at the lifetime needs of a household rather than just looking at their immediate situation. In developing the approach, we have two aims

* To allocate council homes according to the lifetime needs of a household

* To support residents to improve their housing situation without social housing".

Section 3 describes the properties, and the tenure and rents, included within the scheme. It explained that the majority of properties were either secure tenancies of properties provided by the respondent at a social rent or assured tenancies at an affordable rent (of up to 80% of market rent values). It noted that the respondent would work out the size of the home suitable for an applicant and his or her household. Applicants were able to bid for those (or smaller) properties but not larger ones. The allocation scheme explained how the size of a property, and the number of bedrooms required, was calculated. Paragraph 3.5.2 of the scheme provided that to “ensure that we make the best use of our housing stock, flats on the ground floor may be prioritised for those with a medical recommendation for a ground floor property”. Paragraph 3.6 provided that wheelchair-adapted properties would be reserved for tenants who required a wheelchair and offers for such properties would be made by direct offer (that is, the respondent would match a tenant to the property and make an offer without anyone bidding for that property). Applicants could bid for suitable housing and a property would be offered to the applicant with the most points or, where more than one applicant had the same number of points, to the applicant who had been longest on the waiting list.

Section 9 of the allocation scheme explained that the respondent used a points system for assessing applications for housing. Applicants were awarded points to reflect, or measure, their housing priority by their circumstances. It noted that there was a severe shortage of housing in the borough, and applicants could only bid if they had 100 points or more. The maximum number of points available under the scheme was 1000.

The system was based on an award of points. The allocation scheme identified six groups, described as reasonable preference groups, namely: (1) those who were homeless or threatened with homelessness; (2) those living in unsanitary housing; (3) those living in overcrowded housing; (4) those with a long-term health and wellbeing issue which was being affected by their current housing (applicants seeking points under this category were told that a health and wellbeing assessment based on medical evidence would need to be carried out); (5) those who needed to move to a particular location and (6) those with an emergency and exceptional need to move. The points that were to be awarded for each reasonable preference group were set out in a table in Appendix A to the allocation scheme. The rubric at the head of the table provided that:

"Applicants will qualify for the housing register if they meet one of the criteria set out below. Applicants may meet more than one of the criteria set out under each of the groups, in which case, they will be put in whichever category would award them the highest level of points. Applicants will not be awarded points from more than one of the below boxes at any one time. The maximum number of points is 1000."

In addition to the six reasonable preference groups, provision was made for certain additional preference groups. The rubric for these groups said:

“Applicants are eligible for additional points dependent on their circumstances. Additional preference points will only be awarded in addition to points gained through the Reasonable Preference categories. Health and Wellbeing Points are not available to applicants who have points awarded as being Homeless or Threatened with Homelessness”.

There were two additional preference groups, health and wellbeing and armed forces. Those with a low health and wellbeing need could be awarded 50 additional points and those with a medium need could be awarded an additional 150 points. Those who were homeless (such as the appellant) did not qualify for these additional points.

Appendix B to the allocation scheme dealt with the assessment of health and wellbeing. It defined the various categories of health and wellbeing need as follows. High was where the applicant had an urgent need to move because current living conditions (1) put the applicant's life at risk if he or she did not move; or (2) caused the applicant to be completely housebound and he or she would regain substantial independence if an alternative property were made available (including a wheelchair adapted home for a wheelchair user); or (3) put the lives of others at risk (such as, for example, an inability to self-evacuate in the event of a fire). Appendix B noted that applicants with high health and wellbeing priority did not need to meet the requirements of the reasonable preference criteria. Although not well expressed, I take that to mean that they do not need to meet the criteria for the reasonable preference groups 1 to 3 or 5 to 6, as they fall within reasonable preference group 4, applicants with a high health and wellbeing need, and qualify as such for 1000 points.

Appendix B defined medium level priority as being where the applicant's need to move was less urgent and not life threatening but their living conditions were unsuitable and, if left unresolved, their quality of life would deteriorate. It defined low priority as where the applicant's living conditions caused them difficulty in carrying out their daily activities, but this was neither life threatening nor would greater harm or progression of the illness be caused if the applicant did not move. Both medium and low priority for health and wellbeing would give an applicant additional points provided that they meet one of the other reasonable preference criteria and subject to the exclusion of those applicants who had points awarded as being homeless or threatened with homelessness.

On 20 February 2023, the appellant and his family were awarded 200 points under the respondent’s allocation scheme as they were homeless and living in accommodation provided by the respondent.

On 16 March 2023, the appellant sought a review of the decision to award him 200 points. The reviewing officer considered the submissions made on behalf of the appellant who was contending that he should be awarded reasonable preference on the grounds of health and wellbeing. She took into account the fact that the appellant’s wife had been diagnosed with a number of health conditions. She was satisfied that the decision to award 200 points was correct. This is the decision that is the subject of the claim for judicial review.

For completeness, I note that the appellant also applied to the respondent for the award of additional points and a direct offer of social housing as he considered that private sector accommodation would not meet his family’s needs. That matter was considered by the emergency and exceptions panel (“the Panel”) who, in their letter dated 12 June 2023, decided that he did not meet the relevant criteria. As part of its consideration of the application, the Panel considered whether the appellant and his family had a high health and wellbeing need as defined in Appendix B to the allocation scheme. The Panel concluded that it was not satisfied that conditions in the temporary accommodation put the appellant’s or ED’s life at risk. The medical evidence did not indicate that the appellant, ED or the children required a wheelchair accessible home. They were not rendered housebound by any medical condition. The Panel concluded, therefore, that the appellant did not satisfy the criteria for having a high health and wellbeing need.

The judgment below dealt with a number of grounds some of which are no longer pursued in this appeal. For present purposes, the reasoning of the Judge on the issues that arise on appeal was as follows.

First on the question of indirect discrimination contrary to section 19 of the 2010 Act, and the admissibility of the two reports and response to the freedom of information request, the Judge concluded:

“69.

In order to further his claim that the allocation scheme with respect to this specific PCP, namely that applicants owed the main housing duty are excluded from Health and Wellbeing points, RR needs to establish a prima facie case that disabled households are put at a particular disadvantage when compared with non-disabled households. That is not the case. The PCP applies to disabled and non-disabled households alike. There is no difference in treatment and no evidence that disabled households are disproportionately impacted.

70.

While it is said on behalf of RR that it is difficult to obtain the evidence to establish that a household with a disability is disadvantage as compared with a household without a disability, it is necessary to establish a causal link between the PCP and the alleged disadvantage. As is set out in TX: "Having identified the pools for comparison, it is necessary to compare the impact of the PCP on each group. Indirect discrimination requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. However, there is no requirement that every member of the group is disadvantaged." In the case of R (Willott) v Eastbourne BC [2024] EWHC 113, Ellenbogen J. set out that it is necessary to show statistical evidence or other evidence to the effect that a greater proportion of those having disabilities are disadvantaged. The additional evidence that RR endeavoured to have admitted (which I refused as set out above) would not have assisted RR.

71.

RR cannot establish that there is any disadvantage. Any evidence would need to be germane to the PCP and it is not sufficient for bald assertions to be made in order to make out a prima facie case. In the circumstances ground 6 also cannot succeed.”

In relation to the claim that the respondent had failed to make reasonable adjustments as required by section 20 of the 2010 Act, the Judge noted that the essence of the claim was “that it would be reasonable to allow a household with a serious disability to gain additional priority over non-disabled people in the same homelessness or threatened with homelessness cohort”. She concluded that:

“67.

The question of whether an adjustment is reasonable is an objective question for the court, bearing in mind all the circumstances of the case (see Dyson LJ in Royal Bank of Scotland v Allen [2009] EWCA Civ 1213). Even if RR were able to make out that his disabled household required an adjustment, in my judgment it would not be a reasonable adjustment in these circumstances to provide the disabled household with additional points as that would run counter to the allocation scheme that the local authority is entitled to have devised for the purpose of ensuring that those who have a high priority (as set out in the scheme and explained above) have access to housing. Those who are homeless or threatened with homelessness have rights pursuant to the provisions of Part 7 of the HA 1996. Any discriminatory affect caused by the allocation scheme not awarding Health and Wellbeing points (either because the Part 7 rights means that an applicant could not fall within the "high" category or because "low" and "medium" Health and Wellbeing points are not available to applicants who have points awarded as being Homeless or threatened with homelessness) is justified because the local authority can resolve the homeless person's homelessness by making an offer of suitable accommodation under Part 7 of the HA 1996 . The only adjustment would be to place a household with disability into the Health and Wellbeing category, but that would run entirely counter to the policy devised by the local authority which is a matter for the local authority to determine (see Ahmed).”

In relation to section 149 of the 2010 Act, the Judge noted that the respondent relied upon the fact that an equality impact assessment was undertaken when the allocation scheme was approved and that, in applying the scheme since its approval, the respondent had been considering the needs of individual applicants including those with a disability. She recorded that the appellant:

“contends that [the respondent] is in breach of the [public sector equality duty] as there is a failure to monitor or record how many households with disabilities are owed the main housing duty by the [respondent], and therefore have the protections afforded by Part 7 [of the 1996 Act]; [the respondent does not record how many households with disabilities are in unsuitable accommodation and how long such households typically wait to be housed”.

The Judge noted that, after the close of submissions, the appellant had made reference to a report from the Equalities and Human Rights Commission (“the EHRC”). She concluded that there was a duty to monitor or collect data, and that the respondent had failed to comply with that duty and, to that extent, it was in breach of its obligation under section 149 of the 2010 Act. She concluded that:

“79.

I accept Enfield's submissions that the EHRC, while highlighting the very real difficulties faced by households with a disability, does not provide the evidence that RR is seeking. It does not show that there is a disproportionate impact upon households with a disability. However, it does provide support for the contention raised on behalf of RR that Enfield is failing to collect and analyse data relating to the impact of allocation decisions upon households with a disability and, in my judgment, Enfield has failed in fulfilling its PSED obligations in this respect.

80.

This judicial review challenge is therefore partially made out under Ground 7, namely the failure on the part of Enfield in fulfilling its PSED obligations under section 149 of the EA 2010 by its failure to both monitor and record statistics relating to the allocation of housing to disabled households. It is not accepted by Enfield that the PCP puts any group with a protected characteristic at any disadvantage, and it is Enfield's case that in dealing with housing it is focussed on disability. What Enfield does not have is the data to support its position and the duty of inquiry is therefore not satisfied.”

The judge, however, concluded that section 31(2A) of the 1981 Act applied. That provides that a court must refuse relief if it is highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. She concluded that the respondent’s “determination would not have been different had it complied with its duty of inquiry under section 149” of the 2010 Act (see at [81] of the judgment). The Judge therefore refused a remedy in relation to this ground. She dismissed the claim.

In the light of that background, and the appellant’s and respondent’s notices, and the applications made, the following issues arise and it is convenient to deal with them in this order:

The Court may refuse to entertain an appeal if the appeal is academic. That may, for example, be the case where there is no longer any live issue between the parties.

In the present case, Mr Paget, for the respondent, submitted that the appeal should be dismissed as it is academic. First, he submitted that the respondent’s housing allocation scheme has been amended with effect from April 2025. I do not see how that fact renders the appeal academic. The issues relate to whether the provisions of the respondent’s housing allocation scheme in force prior to that date gave rise to a breach of section 19 or 20 of the 2010 Act or whether the respondent was in breach of section 149 of that Act.

Secondly, and more significantly, Mr Paget submitted that there is no longer any live issue between the parties as the appellant has accepted an offer of a private sector tenancy. Although the respondent’s application to dismiss referred to that as the allocation of Part VI accommodation, the appellant submits that that is incorrect. The appellant appears to have been offered a private rented sector tenancy which would bring the duty under section 193(2) of the 1996 Act to an end (see section 193(7AA) and has not been allocated social housing under Part VI of the 1996 Act.

In any event, the precise status of the offer is not the material consideration. It is accepted that the appellant has sought a review pursuant to section 202 of the 1996 Act as he considers that the accommodation is not suitable for his needs. That review has not yet been determined (and the appellant would have an appeal to the county court under section 204 if the review was unfavourable). If the reviewer (or the county court on appeal) finds that the accommodation is not suitable, then the duty under section 193(2) of the 1996 Act would continue. The appellant would continue to be a homeless person, still on the housing register, and still be eligible to be awarded 200 points as a homeless person. He would not be eligible for an award of 50 or 150 points for a low or medium level health and wellbeing need. Until the review (or appeal) is resolved, there continues to be a live issue between the parties. Furthermore, the claim for judicial review included a claim for damages in respect of discrimination. The issues relating to the 2010 Act will therefore need to be resolved in order to determine the claim for damages. That remains a live issue. For those reasons, this appeal is not academic. I would therefore refuse the respondent’s application to dismiss the appeal.

It is convenient to take the second and third issues together. Ms Davies KC, with Mr Bano, for the appellant identified the PCP as the provision in the respondent’s housing allocation scheme which prohibited or disentitled homeless applicants from accruing additional points in the case of health or wellbeing. She submitted that that requirement placed homeless households with a disabled member at a particular disadvantage as compared with homeless households which did not include a disabled member. The disadvantage was the fact that homeless households with a disabled member waited for a longer period before being allocated social housing than homeless households without a disabled member. Ms Davies submitted that there were fewer accessible properties available under the allocation scheme. Homeless households with a disabled member, therefore, had a smaller pool of suitable properties for which they could bid as compared with homeless households with no disabled members who had a greater pool of properties for which they were able to bid. Consequently, she submitted, homeless households with a disabled member were waiting longer in Part VII accommodation before being allocated a property under Part VI of the 1996 Act.

Ms Davies accepted that she had no statistical evidence to demonstrate the proportion of persons in each group (i.e. homeless households with, and without, a disabled member) nor as to the time that each group waited before being allocated social housing under Part VI of the 1996 Act. However, she submitted that section 136 of the 2010 Act allowed the court to infer that there had been a contravention of the 1996 Act. Here, she submitted, the evidence that the Judge excluded demonstrated that a high proportion of people with disabilities lived in unsuitable temporary accommodation, that that was associated with an exacerbation of physical and mental health conditions or difficulties in accessing facilities, and that temporary accommodation for homeless persons tended to be of very poor quality and overcrowded.

Ms Davies also sought to rely on two items of evidence that came into existence after the hearing below. First, she relied upon a comment by a spokesperson from the respondent recorded in a BBC news report indicating that there was a significant lack of affordable housing in London and the south-east and there were only a handful of properties in the borough of Enfield suitable for those with additional needs. She also relied on a response from the respondent, recorded in the determination of the Ombudsman, that there were at least 600 households in unsuitable temporary accommodation (which was said to be a reference to accommodation provided under Part VII of the 1996 Act).

Ms Davies submitted that all that evidence allowed the inference to be drawn under section 136 that homeless households with a disabled member had fewer properties to apply for and waited longer in unsuitable accommodation. She relied upon the length of time that the appellant had been in temporary accommodation (that is, Part VII accommodation) which she described as unsuitable.

Mr Paget, for the respondent, submitted that the Judge was correct to dismiss the claim under section 19 of the 2010 Act. The issue here was whether the PCP put homeless households with a disabled member at a particular disadvantage as compared with homeless households without a disabled member, in the allocation of housing under Part VI. The appellant had not been able to identify any evidence that showed that the PCP did have a disproportionate impact. The Judge had correctly analysed the evidence which she refused to admit and was entitled to conclude that it was not relevant to the comparison between the two relevant groups. Evidence about what disabled persons thought about the quality of accommodation under Part VII was not relevant to the comparison. The response to the freedom of information request contained information about Part VII accommodation, not Part VI, and did not provide information about the relevant comparison. The same was true of the new evidence on which the appellant sought to rely. Further, section 136 of the 2010 Act required proof of primary facts from which an inference could be drawn that the respondent had contravened the 2010 Act. It was not enough simply to assert that.

Section 19(1) of the 2010 Act provides that a person (which includes a public body) discriminates where it applies a PCP which is discriminatory. That involves determining if the conduct complained of is a PCP. It will also involve consideration of whether the PCP is discriminatory which, in turn, involves considering each of the four elements identified in section 19(2)(a) to (d) of the 2010 Act. Sections 19(2)(a) and (b) involve at least the following two elements. First, it is necessary to establish that the PCP is applied to one group of persons with a protected characteristic as compared with another group who do not share that characteristic. There needs to be a comparison between the two groups to show that one group is put at a particular disadvantage as compared with the other group. Put differently, it is necessary to show that the PCP has a disproportionate impact on the group of persons with a protected characteristic. Secondly, it is necessary to show a causal link between the disadvantage and the PCP, that is that it is the PCP that puts persons at a particular disadvantage. See, generally, the decision of the Supreme Court in Essop v Home Office [2017] UKSC 27; [2017] 1 WLR 1343, especially at [4], [25] and [41].

In the present case, the PCP relied upon is the provision in the respondent’s housing allocation scheme “which disentitles homeless applicants from accruing any additional medical or wellbeing priority” (see paragraph 66 of the amended statement of facts and grounds forming part of the claim form). For clarity the PCP prohibits the award of the 50 or 150 additional points for a low or medium health and wellbeing need. It is clear that, on a proper interpretation of the scheme, persons who have a high level of health or wellbeing need, as defined in the allocation scheme itself, will qualify for the 1000 points awarded to that preference group whether or not they are homeless and being provided with accommodation by the respondent.

The claim is that that PCP puts homeless households with a disabled member at a particular disadvantage as compared with homeless households without a disabled member. The particular disadvantage is said to be that homeless households with a disabled member are waiting longer before being allocated social housing under Part VI than homeless households without a disabled member. The comparison that is made, therefore, is between those two groups in respect of the time spent waiting for the allocation of social housing under Part VI. Then consideration needs to be given as to whether it is the particular PCP in issue, namely the fact that homeless persons cannot accrue the additional 50 or 150 points for a low or medium health and wellbeing need, which causes the particular disadvantage.

The PCP itself is neutral as between the two groups of homeless households (i.e. those with, and those without, a disabled member). The claim is that, in practice, one group (homeless households with a disabled member) are waiting longer for the allocation of social housing under Part VI.

In the present case, however, there was no material before the Judge which enabled her to determine the period of time that homeless households with a disabled member spent waiting for the allocation of Part VI social housing as compared with homeless households without a disabled member. There was no statistical or other material addressing that point. There was nothing, therefore, to enable the Judge to conclude that homeless households with disabled members were put at a particular disadvantage, and were waiting longer to be allocated Part VI social housing, than homeless households without a disabled member.

That is why the appellant wished to rely on three additional pieces of evidence, namely the ones that the Judge refused to admit, and why the appellant submitted that, in the light of section 136 of the 2010 Act, it was for the respondent to provide an explanation as to why there was no contravention of the 2010 Act.

Section 136 requires a court to be satisfied from all the evidence before it that there are facts from which it could decide, in the absence of any other explanation, that there has been a contravention of the 2010 Act. The burden is on the claimant to establish facts from which a court or tribunal could conclude, in the absence of an adequate explanation, that there had been an act of unlawful discrimination. The claimant can do that by reference to evidence adduced by the claimant or by the defendant. However, what has to be established is primary facts from which an inference can be drawn. See, generally, the decision of the Supreme Court in Ebofi v Royal Mail Group Ltd [2021] UKSC 33; [2021] 1 WLR 3863, especially at [14]-[15] and [26]-[30].

The three documents relied upon by the appellant are not, however, documents capable of establishing the necessary facts in this case. They do not demonstrate that the PCP adopted by the respondent is putting homeless households with disabled members at a particular disadvantage by having to wait longer than homeless households without a disabled member for the allocation of social housing under the respondent’s housing allocation scheme.

The All-Party Parliamentary Group report was relied upon as it received responses from persons in temporary accommodation (31 persons who were current or recent residents of temporary accommodation; there were a total of 81 responses). It was submitted that the responses showed that disability was what was described as a “recurring theme”, and that living in temporary accommodation had exacerbated these persons’ ill-health. The report referred to one case where a wheelchair user was placed in temporary accommodation that the person said was not suitable for a wheelchair user. The report also referred to respondents to the survey referring to the extent to which they had problems with accessing facilities in their temporary accommodation. The report was therefore concerned with problems about the quality of the temporary accommodation that had been provided (under Part VII) not the issue of comparison of the waiting times as between different groups before being allocated Part VI social housing.

The same is true of the other two documents. The Shelter report addressed what were considered to be problems of living in temporary accommodation. The response to the freedom of information question responded to requests for information about Part VII accommodation.

As the judge rightly concluded at paragraph 37 of her judgment, set out above, the evidence that was needed was evidence which established that the respondent’s allocation scheme included a PCP which put homeless households with a disabled member at a particular disadvantage as compared with homeless households without a disabled member. In particular, there needed to be evidence that the former group of persons were waiting longer in temporary accommodation (i.e. that provided under Part VII) than the other group. The material relied upon did not begin to establish facts from which such an inference could be drawn.

At the very most, all that the three items of evidence might do is suggest that there are, or may be, difficulties (at least, in some cases and in some local housing authority areas) with the quality or suitability of housing provided to homeless persons pursuant to Part VII. They do not begin to establish the material facts in this case, namely that one group of homeless households is waiting longer than another group before being allocated Part VI accommodation. The Judge was entitled to conclude that the material which the appellant sought to have admitted at the hearing below was not relevant and to decline to admit it.

The appellant sought to admit two further items of evidence before this court. One concerned a news report of a failure by the respondent to meet its duty under Part VII to secure suitable accommodation. It reports a person, described as a spokesperson for the respondent, saying that “We still have a lack of affordable housing in London and the South East and there are but a handful of properties that are suitable for those with additional needs”. The second item of evidence was an Ombudsman report into a complaint that the respondent had failed to secure suitable accommodation for a family pursuant to its duties to provide suitable accommodation under Part VII. It records a response from the respondent saying that it was estimated that there were at least 600 households in unsuitable temporary accommodation in the borough for a variety of reasons.

Both of those documents deal with the question of whether or not homeless households are being provided with accommodation pursuant to Part VII which is unsuitable. That evidence does establish the facts needed to enable an inference to be drawn that there is unlawful discrimination in the allocation of social housing under Part VI. The evidence might, depending on one’s view, establish that accommodation provided pursuant to Part VII is not suitable (in breach of the obligations imposed by the relevant provisions of Part VII). It might, depending on one’s view, suggest that if a particular group of homeless households were spending more time in Part VII accommodation than another group, any disadvantage associated with living in Part VII continued for longer. But it is not capable of establishing that one group of homeless households (i.e. those with a disabled member) are spending longer in Part VII accommodation, or waiting longer to be allocated social housing under Part VI, than another group of homeless households (i.e. those without a disabled member). For those reasons, although I have read and considered both items of evidence, I would not grant permission for the evidence to be adduced.

There is a second, separate reason why the appellant is unable to establish that the PCP is discriminatory. It, that is the PCP, must put the persons with protected characteristics at a particular disadvantage. There needs to be a causal connection between the PCP and the particular disadvantage.

Here, the PCP is the provision of the housing allocation scheme which provides that persons cannot be allocated an additional 50 or 150 points for a low or medium priority health and wellbeing need. There is no evidence that the inability to acquire an additional 50 or 150 points is the cause of the particular disadvantage being alleged, i.e. that certain groups are waiting longer than others to be allocated social housing under Part VI. The evidence, such as it is, suggests that any time waiting to be allocated an appropriately sized property is linked to the shortage of available properties within the borough not the PCP and the fact that homeless households cannot claim an additional 50 or 150 points for a low or medium health and wellbeing need.

For those reasons, I would dismiss grounds 1 and 3 and I would refuse the appellant’s application to admit new evidence.

The fourth issue can be taken relatively shortly. Section 20 of the 2010 Act provides that a public authority is under a duty to make a reasonable adjustment if one of three requirements are met. The material one is the first requirement set out in section 20(3) which concerns a PCP which puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled.

The appellant’s skeleton argument submits that the Judge made the same error of approach in relation to section 136 of the 2010 in relation to the claim under section 20 of the 2010 Act as she made in relation to the claim under section 19.

There are two short answers to this submission. First, the Judge did not, in fact, reach a decision on whether the requirement was satisfied. Rather she considered whether the adjustment sought was reasonable if it were assumed that the requirement was satisfied. She did not therefore make the error alleged. Secondly, and in any event, the reasoning at paragraphs 51 to 63 above in relation to the application of section 136 in the context of section 19 applies equally to section 20. There is no evidence establishing facts from which a court could infer that there had been a contravention of section 20(3) of the 2010 Act. In particular, there is no evidence that the PCP is putting disabled persons at a substantial disadvantage in comparison with persons who are not disabled.

For completeness, the adjustment sought by the appellant was that homeless households with members who had a serious disability should gain additional priority over non-disabled persons in the same homeless cohort (see [66] of the judgment below). The Judge concluded that, even if the appellant were able to establish that there was a duty to make a reasonable adjustment, the adjustment sought was not a reasonable one. To give such additional priority would run counter to the allocation scheme that the respondent was entitled to adopt (see [67] which is set out above). I consider that the Judge was entitled, indeed correct, to reach that conclusion. Local housing authorities are required to adopt an allocation scheme determining priorities in allocating housing accommodation and “shall not allocate housing accommodation except in accordance with their allocation scheme” (Section 166A(14) of the 1996 Act). The respondent has adopted an allocation scheme. That scheme is lawful. It sets out the priorities for particular groups. It would not be a reasonable adjustment to depart from that scheme and allocate housing in a different way.

For those reasons I would dismiss ground 2 of the appeal.

The Judge found that the respondent was in breach of a duty imposed by section 149 of the 2010 Act to “monitor and record statistics relating to the allocation of housing to disabled households” (see at [80] of the judgment below). She declined to grant a remedy as the decision in this particular case would not have been different even if it had complied with the duty that the judge said existed.

The respondent, in its respondent’s notice, submitted that the Judge erred in finding that there was a breach of section 149 because of the failure to monitor or record statistics. Mr Paget, in his written skeleton argument, submitted that there was no duty to monitor but simply a duty on the respondent to ensure it was sufficiently informed so that it could comply with its duty under section 149. There was nothing to suggest that there had been any breach of that duty in the present case. Alternatively, if there were a breach, Mr Paget submitted that the Judge was right to refuse a remedy for the reasons she gave.

Ms Davies submitted that the Judge was right to find that there was a breach of section 149 but wrong to refuse a remedy. She submitted that the decision under challenge, the 23 May 2023 decision, was unlawful because the failure to monitor meant that the respondent did not have sufficient information to have due regard to the relevant equality considerations. She submitted that the point about the impact on homeless households with disabled members had been raised before 23 May 2023, as it had been referred to in the pre-action protocol letter, and the respondent had taken no steps to “have due regard”. Ms Davies relied upon the decision R (DXK) v Secretary of State for the Home Department [2024] EWHC 579 (Admin), [2024] 4 WLR 46 (“DXK”).

Ms Davies submitted that the Judge was wrong to refuse a remedy. The correct approach was set out in R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; [2020] PTSR at [272] which indicated that it would often be difficult for a court to conclude that the outcome would not have been substantially different if the public body concerned had not made the error. She referred to R (AK) v Westminster City Council [2024[] EWHC 769 (Admin), [2024] PTSR 940 as an example of the correct approach.

Section 149 of the 2010 Act imposes a duty on public bodies, often referred to as the public sector equality duty. It is important, however, to consider the terms of section 149 in order to determine the scope or content of that duty. It is an obligation on a public authority (1) “to have due regard” (2) “in the exercise of its functions” (3) to the need to eliminate discrimination, harassment, victimisation or other prohibited conduct, and to advance equality of opportunity, and to foster good relations, between persons who share a protected characteristic and those who do not.

The starting point, therefore, is to identify the particular functions that the public body is exercising. The next step is to assess whether, on the evidence, the authority did have due regard to the specified equality considerations when exercising those functions.

In the present case, the respondent was exercising a function when it adopted its housing allocation scheme. It carried out an equality impact assessment prior to adopting its allocation scheme. There is no suggestion that the allocation scheme is unlawful or that the respondent failed to have due regard to the relevant equality considerations when adopting that scheme.

The second function the respondent exercised was carrying out a review of the decision to award the appellant 200 points in accordance with the allocation scheme. As appears from the decision letter of 23 May 2023, the reviewer took into account the fact that the appellant’s wife had been diagnosed with a number of health issues and that the appellant was contending that he should be awarded reasonable preference on the grounds of health and wellbeing. The reviewer took into account the submissions made on behalf of the appellant to the effect that the allocation scheme was discriminatory because it did not award reasonable or additional preference to homeless households. The reviewer, however, concluded, correctly, that the allocation scheme specified that applicants who were homeless or threatened with homelessness were not entitled to wellbeing and health points either as a reasonable preference or additional points. She pointed out that the respondent was required to allocate housing in accordance with the allocation scheme (citing section 166A(14) of the 1996 Act). In the circumstances, therefore, there was no failure on the part of the respondent to have due regard to the specified equality considerations when exercising its function of reviewing the allocation of points to the appellant. That exercise of functions did not involve a breach of section 149 of the 2010 Act.

In those circumstances, the Judge was wrong to conclude that there had been a failure by the respondent to have due regard to the relevant equality consideration. She failed to consider the relevant exercise of functions and to consider whether, in exercising those functions, the respondent had failed to have due regard to the specified equality considerations. Rather, the judgment indicates that the Judge erroneously considered that there was some free-standing duty to monitor or collect statistics and that there had been breach of that duty.

The collection of statistical data on the operation of a policy is good practice (as recognised by the EHRC and the respondent itself in its equality impact assessment). There may, depending on the facts, be situations where a public body is reviewing its policy and may not have sufficient information to consider the equality implications because it has not monitored or collected data on the operation of the policy. It may have to consider how to acquire the relevant information. See, by way of example, the decision in R (Ward) v Hillingdon London Borough Council [2019] EWCA Civ 692, [2019] PTSR 1738 which dealt with a housing allocation scheme which required persons to have lived in the borough for 10 years in order to be eligible to join the register of persons seeking Part VI accommodation. Lewison LJ, with whom King and Underhill LJJ agreed, recognised that there may be circumstances where it would need to be shown that the policy maker had given adequate thought, conducting such inquiries as necessary, to decide which protected groups should be considered. He concluded that the local housing authority was not in breach of section 149 of the 2010 Act when it adopted its allocation scheme in 2013. However, when it amended the scheme in 2016, it should have considered the position of non-UK nationals, such as refugees, as that matter had been brought to its attention at that stage. For that reason, there was a breach of section 149 of the 2010 Act.

The appellant relied on the decision in DXK. There, however, the deputy High Court judge was concerned with the duty of the Secretary of State under section 4(2) of the Immigration and Asylum Act 1999 (“the 1999 Act”) to provide failed asylum-seekers with accommodation when they were destitute and the provision of accommodation was necessary to avoid a breach of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Secretary of State accepted that, generally, accommodation should be provided within five working days. The Secretary of State engaged independent contractors to provide the accommodation. However, there was no means of checking that the independent contractors were, in fact, providing failed-asylum seekers with accommodation within the relevant time scales.

In the earlier case of R (DMA) v Secretary of State for the Home Department [2020] EWHC 3416 (Admin), [2021] 1 WLR 2374 (“DMA”), Knowles J. had held that the failure by the Secretary of State to collect data, and to use that data to ensure that the contractors provided accommodation to failed asylum-seekers within the relevant timescale, meant that the Secretary of State was not in a position to ensure that she was acting lawfully and in a way which complied with her duty under section 4(2) of the 1999 Act. Some of the failed asylum-seeker claimants had disabilities. Knowles J. found that the failure by the Secretary of State to monitor the provision of accommodation by contractors resulted in a breach of section 149 of the 2010 Act for two reasons. First, there was a failure to resolve the problem when accommodation which the Secretary of State was obliged to provide was not being provided. Secondly, there were economic incentives built into the contracting model which made it less profitable (or unprofitable) to provide disabled failed-asylum seekers with accommodation (see [203]). In that context, there was a need to ensure that the system was working, and if not to identify solutions, where the system for providing accommodation under section 4(2) of the 1999 Act was leading to the provision of accommodation for persons with a disability taking longer than it did for persons without a disability (see at [320]).

The decisions in DXK and DMA were both concerned with the situation that arose where the Secretary of State had a duty to provide accommodation to a group of people (failed asylum-seekers) and discharged that duty through independent contractors. The Secretary of State needed to have a system in place that ensured that the contractors did provide the accommodation within the relevant timescale and did not take longer to provide accommodation to disabled failed-asylum seekers as compared with non-disabled failed asylum- seekers. The reference to gathering information and a duty to monitor need to be understood in that context. The courts were recognising that the necessary information had to be obtained to enable the Secretary of State to discharge the functions under section 4(2) of the 1999 Act to provide accommodation. The courts were not deciding that there was some free standing duty to monitor, derived from section 149 of the 2010 Act, and, still less, were they indicating that a decision reached in accordance with a lawful policy, such as the housing allocation scheme in the present case, would be unlawful in the absence of monitoring of the effects of the policy.

The respondent was correct, therefore, in its submissions that there was no breach of section 149 of the 2010 Act in this case. If there had been such a breach in the present case (which there is not), then I would have upheld the decision of the Judge to refuse a remedy pursuant to section 31(2A) of the 1981 Act. That section provides that the court must refuse relief where it is highly likely that the outcome for the individual concerned would not have been substantially different if the conduct complained of had not occurred. The outcome here was the review decision of 23 May 2023 which found that the appellant was correctly awarded 200 points under the housing allocation scheme and was not entitled to additional points for health or wellbeing needs. The conduct complained of was that the respondent had not monitored and recorded statistics relating to the allocation of housing to homeless households with disabled members. The proper approach to section 31(2A) of the 1981 Act is set out in R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 especially at paragraph 71, and R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA 488, [2025] 2 P & C.R 16 especially at paragraph 73. The court is concerned with evaluating the significance of the error on the decision-making process. It considers the decision that the public body has reached and assesses the impact of the error on that decision in order to ascertain whether it is highly likely that the outcome (the decision) would not have been substantially different if the error had not been made.

In the present case, the review decision was correct in its application of the respondent’s housing allocation scheme. As the decision-maker noted, the respondent was required to allocate housing in accordance with that scheme. Any alleged failure to monitor and obtain statistics would not affect the decision on the review. At most, it might have been relevant, dependent on the circumstances, to a future review of the housing allocation scheme. In those circumstances, if there had been any breach of duty, the Judge would have been entitled to refuse a remedy in relation to the decision under challenge.

I would dismiss the appeal and uphold the respondent’s notice. The respondent did not breach sections 19, 20 or 149 of the 2010 Act. The Judge was entitled to refuse to admit the evidence that she did. I would refuse to admit the new evidence.

I agree.

I also agree.