XC, R (on the application of) v London Borough of Southwark

Ms Sanders contends that the Defendant’s response to her client’s letter before action, and its letters of 25 July 2015 “forbidding the claimant from providing any further evidence of noise nuisance” and of 8 January 2016 threatening “to limit the Claimant’s contact with the housing department”, arise from the Claimant’s disability and constitute unfavourable treatment.

Ms Sanders argues that the allegations made in the response to the letter before action were insulting and without proper foundation and that in the two letters the Defendant indicated an unfavourable attitude to the Claimant and unjustifiably sought to limit the Claimant’s contact with the Defendant. I have no hesitation in rejecting those allegations.

First, in my judgment the Claimant mischaracterises the response to the letter before action as being a decision letter for the purposes of this claim. It is nothing of the sort. It is simply a response to the allegations made against the authority.

Second, although it might fairly be said that the tone of the response is unfortunate and betrays a degree of exasperation on the part of the Defendant towards the Claimant, I can see nothing improper in it. It is substantially a matter of commentary upon the Claimant’s case.

Third, as to the detail of this complaint, it seems to me that the observation that “it is obvious that your client can get out and about” is not an unreasonable one, given that the Claimant has made numerous complaints about the malfunctioning of the lift in her building which she was presumably attempting to use in order to get “out and about”. When the lift was not malfunctioning, which, given my conclusion on the disputed evidence on that issue, was the majority of the time, I have no doubt she was able to “get out and about”. The Claimant asserts that she is able to provide care for her adult son who lives in another part of Southwark and the comment that she could contribute two and half hours a week to the community is, in those circumstances, not necessarily inappropriate and certainly does not constitute unfavourable treatment on the grounds of her disability.

It may be that those writing the letter overstate their case when they say that it appears that every couple of years the Claimant seeks to move to alternative property; she has moved only twice in more than twenty years. Nonetheless I regard that as nothing more than somewhat ill-tempered hyperbole. It is correct that the Claimant has asked various medical practitioners to write letters supporting her applications; I see no implication in that observation that she has been persuading doctors to act improperly. It appears to be common ground that on at least one occasion the Claimant neglected her flat; it might be somewhat misstated to say it was “trashed” and trashed twice but I do not regard this as significantly improper or as evidence of unfavourable treatment on the ground of disability.

Whilst I accept that this letter displays irritation on the part of the Defendant authority, I see no evidence that that is unfavourable treatment as a consequence of the Claimant’s disability. It is evident that the irritation arises from the innumerable complaints made by this Claimant and the significant amount of time it has taken to deal with those complaints; the Ombudsman’s conclusions speak to the propriety of the Defendant’s actions in this regard. Whilst it is conceivable that the Claimant’s mild Asperger’s may have contributed to the frequency of her complaint, there is no medical evidence to that effect and it is not appropriate for me to speculate.

Finally on this topic, in my judgment the Defendant’s responses contained in their letters of 23 July 2015 and 8 January 2016 were in no sense indicative of unfavourable treatment arising from the Claimant’s disability. It was in my judgment a considered and proportionate response to persistent complaints which had not been made out.

I turn then to the matters of real substance in this case on which the bulk of the argument was focused. Very sensibly, both parties advanced their case on grounds 2 and 3 together. I follow a similar course.

The issues that arise are whether the design or operation (and I agreed with the parties to treat that formulation as falling within the grant to leave) of the Council’s priority star scheme indirectly discriminated against the disabled or against women whose caring responsibilities prevented or reduced their ability to work, either for pay or as volunteers.

Sections 4 to 12 of the Equality Act identifies and defines seven protected characteristics. As noted above, those include disability and sex. The Claimant is a woman and the Defendant concedes that she suffered from some physical disability.

In my judgment, that concession is correctly made. On any view of the, admittedly limited, medical evidence, she suffers from a condition of her hip which significantly affects her mobility. It is clear, on the evidence, that that disability has had a substantial and long term adverse effect on the Claimant’s ability to carry out normal day-to-day activities within section 6(1) of the Equality Act 2010. I do not understand that to be disputed by the Defendant.

As explained above, there was a dispute as to whether the Claimant suffers psychiatric disability, but I have accepted that she suffers from mild Asperger syndrome.

Sections 13 to 19 of the 2010 Act identify types of conduct which are to be treated as discriminatory. I return below to consider whether the design or operation of the priority stars scheme constitutes discrimination within this Part of the Act.

Section 29 prohibits, by subsection 1, a service provider from discriminating against a person requiring the service by not providing him or her with it or by any other detriment in the provision of the service. By subsection 6, a person exercising a public function that is not a service to the public, is prohibited from doing anything which constitutes discrimination.

Mr Baker says that the Authority is a service provider to which subsection 1 applies. He says that the service being provided was not the provision of housing, to which no applicant has an entitlement, but the provision of the scheme for allocation for housing. I agree.

Ms Sanders argued that if the design and application of the scheme is not caught by subsection 1, it is caught by subsection 6. I agree. In my judgment the Authority was concerned with the provision of a service to the public, or a section of it, namely the inhabitants of Southwark. In any event the Authority was exercising a public function.

The effect of section 29 is that the Authority may not “discriminate” in a manner defined in Part 2 of the Act in its administration of the allocation scheme. The critical question, therefore, is whether the operation of the scheme amounted to discrimination against women or disabled persons within Part 2 of the Act.

The Claimant contends that the design of both the ‘working household’ priority star and the ‘community contribution’ priority star discriminate against her both as a disabled person and as a woman in that they subject her to a detriment. She says her disability, physical and psychiatric, makes it significantly more difficult for her to meet the criteria needed to be awarded the ‘working household’ priority star, namely to be engaged in paid employment for sixteen hours a week. She acknowledges that she told Dr Pearson 2012 that the problem with finding work was that there was often no work available, but she says her physical condition has deteriorated and it is that that makes it hard for her to find work. She says that her disability similarly makes it more difficult for her to meet criteria two of the ‘community contribution’ priority star, namely the requirement that an applicant volunteers for a community organisation for ten hours a month.

The Claimant further argues that the criteria for these two priority stars discriminate against her as a woman. She says that women are more likely to have caring responsibilities, as is the position in her own case in that she has caring responsibilities for her adult son. She says that such responsibilities make it more difficult for women either to work or to volunteer and accordingly more difficult to meet the criteria for these priority stars.

Ms Sanders says that the assertion that the disabled find it more difficult to work or to volunteer is self-evident. She says that the assertion that women are less likely to work is supported by the Defendant’s equality analysis which notes that “gender is an issue in relation to economic status with women being universally impacted. Research nationally suggests that women experience lower levels of economic activity than men.”

The Defendant does not seek to suggest that these arguments are ill-founded in themselves. Instead, they say that the Claimant’s focus is too narrow. It is not sufficient, they say, to look at these two priority stars alone without having regard to the allocations scheme as a whole, nor to view the case solely through the prism of the Equality Act without regard to the statutory foundation for schemes of this type.

Mr Baker relies on the Supreme Court’s judgment in R (Ahmad) v Newham LBC [2009] UKHL 14 for the guiding principles applicable to challenges to housing allocation schemes.

Mr Baker argued that the scheme contained a number of features favouring disabled people in general. Those included the fact that its objectives, at paragraph 1.3.1 (i) and (j), include responding “to the circumstances of vulnerable individuals…” and ensuring and promoting “equality of opportunity in accessing the housing register based on reasonable preference”. He points to paragraph 2.2 of the scheme which states Southwark’s commitments to diversity and equality and paragraph 3.2 which makes provision for direct offers of accommodation, including in cases concerning “serious health and safety or personal protection issues”, “other urgent housing needs situations where it would not be reasonable in the circumstances to wait” and “an exceptional need which is not predicted or covered in the Housing Allocation scheme”. He says provisions governing “medical, welfare and disability grounds” at paragraph 5.20 include an award of welfare priority on a grounds including the “need to give or receive care”, “behavioural difficulties”, “mental or physical disorder” and “physical or learning disability”. There is a general provision for the support of vulnerable people at paragraph 5.21.

Mr Baker also points to the fact that band 2 gives priority to applicants who have “a severe medical, welfare award or disability” where the current accommodation is unsuitable or it is unreasonable to expect tenants to remain in occupation. Band 3 gives priority to those applicants “with a moderate medical priority where there is a clear objective need for a move because they include a person (or persons) whose illness or disability is either made worse by the their present living conditions or where a move to a more satisfactory accommodation is likely to result in an improvement to health.” He also points to the fact that there is special provision at paragraph 7.11 for “adapted/adaptable properties”.

In a similar vein, Mr Baker emphasises features in the scheme which favour women in general and those with caring responsibilities. It is said that women are more likely to be assisted by provisions relating to landlord request transfers, for example in cases of domestic violence. Caring needs and responsibilities are recognised as welfare grounds. There is special provision for the exercise of discretion to grant new tenancies in cases involving full time live in, unpaid carers and in cases of vulnerability. Band 2 provides priority for urgent needs in connection with care. Band 3 includes cases where a homelessness duty is owed and it is said that homelessness assistance disproportionately favours women, especially because of the definition of priority need in section 189, which includes pregnancy and households where there are dependent children.

As Mr Baker points out the primary element of the allocation scheme is the four bands and the Claimant makes no challenge either to that structure or to her place at band 4.

Mr Baker argues that the priority stars impugned in these proceedings were only two out of six. The others relate to people owed a statutory homelessness duty, people occupying unsatisfactory housing, people who need to move on severe medical or severe welfare grounds, and people who need to move because of severe hardship. Mr Baker also points to the evidence of Ian Swift, Southwark Group Services Manager who sets out data which he says demonstrate that the priority stars have not in fact discriminated against those unable to work or volunteer by reason of disability and gender.

These are all powerful points suggesting that there is no intent on the part of Southwark to discriminate against either women or the disabled. However what matters is not intent, but effect. Mr Baker would suggest that effect can only be measured by viewing the operation of the scheme as a whole whereas Ms Sanders argues that it is necessary to consider the effect of the particular elements of the scheme in deciding whether it has discriminatory effect under Part 2. She says that the effect of the policy as a whole is relevant, if at all, only at the stage of justification.

Arguments to a similar effect were considered by His Honour Judge Waksman QC in R (H and Others) v Ealing London Borough Council [2016] EWHC 841 (Admin) (a case which I was told is being appealed). As in the present case, H concerned the use of priority bands to allocate housing. There a scheme was introduced by the Council to incentivise tenants to work and to encourage good tenant behaviour. Under the scheme, 20% of available lettings were removed from the general pool and reserved for working households, where one family member worked for at least 24 hours each week, and for model tenants, namely those who had complied with the terms of their council tenancy. The claimants included elderly people and a single parent who was a carer for another claimants, and who were disabled within the meaning of the Equality Act 2010 s.6 and unable to work. The claimants argued that the scheme indirectly discriminated against women, disabled and elderly persons within the meaning of s.19(2) of the Act and was not justified.

The headnote provides a convenient, and accurate, summary of the judgment:

“women, disabled persons and the elderly were prima facie unfairly disadvantaged under the new scheme, due to their disadvantage in the labour market and consequential difficulty in meeting the imposed working criteria necessary to qualify for housing stock removed from general availability, and the sample figures adduced from the new scheme in practice did not overturn that apparent position; that while it was necessary to consider the policy in the round, the discriminatory effect of a particular provision within the global policy could not be ignored if such a provision impacted upon the overall scheme; that, therefore, the local housing authority, by its scheme, indirectly discriminated against protected groups, being the disabled, the elderly and women in the provision of a service, namely housing, within the meaning of section 19(1) of the Equality Act 2010 ; that while the authority had a legitimate aim in encouraging tenants to work and to be well-behaved in relation to their tenancy and the scheme was a rational means of achieving that aim, it was clearly not the least intrusive way of doing so, since the authority could readily have included a “safety valve” mechanism or discretionary provision to allow, in exceptional circumstances, for the inclusion of the disadvantaged within the reserved allocation of housing; that, therefore, the discrimination was not justified under section 19(2) ; and that, accordingly, the working households element of the scheme constituted unlawful indirect discrimination under the 2010 Act”.

As to the first stage of that argument, I respectfully agree with Judge Waksman. In my judgment, it is perfectly plain that the effect of the priority star scheme in the present case is indirectly to discriminate against those with disabilities and against women. It is beyond argument, in my view, that to make available a benefit, here a “star” which increases the prospect of achieving preferential housing, which can more readily be acquired by those without a disability, is to discriminate against the disabled by subjecting them to a detriment.

In fact, the documents produced by the Defendant more or less acknowledge the capacity in the scheme to discriminate: their “Pre-implementation Equality Analysis” says that “disabled people are more than twice as likely to be unemployed as non-disabled people” and that there is “potential for people with disabilities to be disadvantaged within the process, particularly those with mental illness”. And that applies as much to the priority star for volunteering as it does to that for working households.

The fact that there are other elements of the scheme which disabled persons may more readily be able to achieve is nothing to the point; the priority stars are cumulative in their effect and being disabled makes it less likely that an applicant will be able to obtain one or both of these stars and enjoy the preference they bring. The Defendant sought to rely on statistics to show that, in fact, there was no significant discrimination in the operation of the schemes. That argument seems to me doomed to failure. The Claimant makes legitimate criticism of the statistics used; certainly the failure in the figures to distinguish between “applicants” and “households” and the very small samples used, makes the figures unreliable. But the figures simply do not respond to the inevitable conclusion on the evidence.

Similarly, the Defendant acknowledges that the allocation of these two priority stars discriminates against women. Wholly unsurprisingly, in its equality analysis the Defendant acknowledges that “research nationally suggests that women experience lower levels of economic activity than men” and the Defendant produced no evidence that the position was different in Southwark. The evidence as to female volunteering was much less convincing; I was shown a single newspaper article which suggested that, whilst for many years men had been less likely to volunteer than women, very recently it had been shown that 27% of men did voluntary work against 26% of women. However, I accept the Claimant’s argument that women are much more likely to be volunteer carers than men and the Defendant’s scheme makes no allowance for that as regards this priority star.

For those reasons, I accept Ms Sanders’ case that this scheme was indirectly discriminatory against the Claimant. The critical question is whether that discrimination can be justified as being proportionate to the objective in view. The final requirement under Section 19(2) is that the Defendant cannot show that the provision, criterion or practice complained of is “a proportionate means of achieving a legitimate aim”.

The parties differed as to the proper approach to this issue and, in particular, as to whether the appropriate test was whether the council’s policy decision should be respected unless it was “manifestly without reasonable foundation”, the position adopted by Mr Baker, or whether the Court should apply the “structured approach” set out in Bank Mellat v HM Treasury (No 2) [2014] AC 700.

In support of his case, Mr Baker referred to a series of cases concerning decisions of the Government in the field of social welfare, notably Stec v UK (2006) 43 EHRR 1017, R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, and R (RJM) v Secretary of State for Work and Pensions[2008] UKHL 63. In response to the argument that these were cases of “high policy”, far removed from individual housing decisions by local councils, Mr Baker referred to the judgment of Lord Dyson in R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13. At paragraphs 54 – 55 Lord Dyson said:

“Although the precise detail and scope of the Regulations may not be matters of high policy in themselves, they form an integral part of what was unquestionably a high policy decision. The particular decisions taken to give effect to the high policy decision cannot be dismissed as being technical detail. These decisions involved policy choices even if at a lower level than the overarching decision to reduce HB by focusing on the problem of “under-occupancy” of accommodation….This area of the law would suffer from undesirable uncertainty if the test were to be ‘manifestly without reasonable foundation’ where there is a challenge to high policy decisions and a less stringent test where the challenge is to lower level policy decisions. I see no warrant for taking this course.”

In my judgment, it is impossible to equate Regulations approved by Parliament with a local council’s housing allocation scheme. I accept the Claimant’s submissions that the social welfare cases relied on by the Defendant are of little assistance.

In my judgment, as Ms Sanders argues, the authority that is applicable here is the Supreme Court’s decision in Aster Communities v Akerman-Livingstone [2015] AC 1399, a case which concerned possession proceedings initiated at the instigation of a local authority against a man suffering from a severe and pronged stress disorder. Lady Hale noted that by ss15 and 35 of the Equality Act Parliament had provided for disabled people to have rights in respect of the accommodation which they occupy which are different from, and additional to, the rights of non-disabled people. Landlords may be required to accommodate, or to continue to accommodate, a disabled person when they would not be required to accommodate, or continue to accommodate, a non-disabled person. But she said “This is not an absolute obligation. The landlord is entitled to evict a disabled tenant if he can show that this is a proportionate means of achieving a legitimate aim”. At paragraph 28 she held:

“The concept of proportionality contained in section 15 is undoubtedly derived from European Union law, which is the source of much of our anti-discrimination legislation. Three elements were explained by Mummery LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 , para 165: “First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?”

This three-fold formulation was drawn from the Privy Council case de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 , 80, which was itself derived from the Canadian case R v Oakes [1986] 1 SCR 103 . However, as Lord Reed JSC explained in Bank Mellat v HM Treasury (No 2) [2014] AC 700, 788, para 68 et seq, this concept of proportionality, which has found its way into both the law of the European Union and the European Convention on Human Rights, has always contained a fourth element. This is the importance, at the end of the exercise, of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them. As the Court of Justice of the European Communities put it in R v Minister for Agriculture, Fisheries and Food, Ex p Fedesa (Case C-331/88) [1990] ECR I-4023 , para 13, “the disadvantages caused must not be disproportionate to the aims pursued”; or as Lord Reed JSC himself put it in the Bank Mellat case [2014] AC 700 , 791, para 74, “In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”

In R (H) v Ealing LBC, that this was the correct approach was common ground. As Judge Waksman observed at paragraph 58:

“The statutory form of justification is put at section 19(2) of the 2010 Act as being “a proportionate means of achieving a legitimate aim” and the burden is on the defendant. It is common ground that proportionality should be determined in accordance with the cumulative four-stage test set out by Lord Reed JSC in Bank Mellat v HM Treasury (No 2) [2014] AC 700, para 74, namely: (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 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?”

I accept Ms Sanders’ submissions in this regard and that is the approach I apply.

It was not disputed by the Claimant that the Defendant’s scheme met elements 1 and 2 of the rule set out in Bank Mellat; the policy had a legitimate aim, namely, as set out in the scheme, the creation of sustainable and balanced communities and encouraging residents to make a contribution to the local community. Furthermore, the priority stars had a rational connection to that objective. That must be right. The allocation scheme follows the requirement of s 166A of the Housing Act and it is legitimate for local authorities to seek to ensure that their communities include a reasonable proportion of working members, people able to make a financial contribution to the maintenance of the community, and to encourage those willing to provide voluntary assistance to others in their neighbourhood. Giving a measure of priority to working households and to those who provide community services helps achieve those objectives.

The real question is whether a priority scheme like the Defendant’s was the least intrusive measure which could be used without unacceptably compromising the objective. In my judgment it was.

At this stage of the analysis, it is legitimate to look at the scheme as a whole. All the points made by the Defendant in support of their argument that there was no discrimination, summarised above at paragraphs 64 to 70, are relevant considerations at this stage. So far as was tested before me, this scheme was a proper and lawful response to the requirements of the Housing Act 1996, the Homelessness Act 2002 and the Localism Act 2011.

By s169(1) of the 1996 Act, local authorities are required to have regard to the Secretary of States Guidance. Paragraph 4.27 of the 2012 version of that Guidance provides:

“Local authorities are urged to consider how they can use their allocation policies to support those households who want to work, as well as those who – while unable to engage in paid employment – are contributing to their community in other ways, for example, through voluntary work…”

As it was put in the Defendant’s Grounds, the scheme “gave reasonable preference to the required categories of persons. It contained a package of provisions affording relative priority as between registered applicants in a number of different respects; each of those provisions will in isolation afford priority to various different persons or groups thereby affording relatively less priority to others” (emphasis added).

In other words, by its very nature, this scheme, which is authorised by primary legislation and follows statutory Guidance, involves discrimination in order to achieve the stated aims. Those who fall outside the groups given preference are, inevitably, exposed to a detriment. But that is integral to any reasonable preference scheme.

Meeting the test which I have found is applicable, however, requires that the measure adopted must be the least intrusive which could be used without unacceptably compromising the objective. It must also be shown by the Defendant that in adopting the measure they struck a fair balance between securing the objective and its effects on the Claimant’s rights.

Determining those matters in the context of housing allocation schemes is especially difficult. Every tweak to the scheme to benefit one individual or one class of applicant is likely to have an adverse effect on another; every exception to the operation of a preference may damage the achievement of the objective. The Court inevitably concentrates on the circumstances of the claimant in front of it and it is easy to recognise the disadvantage that a claimant may suffer. But the local authority has to consider the position of all applicants and the Court can have only the most attenuated understanding of their position.

It seems to me that it is at this stage of the exercise, and not before, that the authorities to which Mr Baker referred when making submissions on the nature of the test to be applied, in fact have application. In R (Ahmad) v Newham LBC [2009] UKHL 14, Lady Hale said at paragraph 15:

“The trouble is that any judicial decision, based as it is bound to be on the facts of the particular case, that greater weight should be given to one factor, or to a particular accumulation of factors, means that lesser weight will have to be given to other factors. The court is in no position to rewrite the whole policy and to weigh the claims of the multitude who are not before the court against the claims of the few who are. Furthermore, relative needs may change over time, so that if the council were really to be assessing the relative needs of individual households, it would have to hold regular reviews of every household on the waiting list in order to identify those in greatest need as vacancies arose. No one is suggesting that this sort of refinement is required. It would be different, of course, if the most deserving households had a right to be housed, but that is not the law.”

Lord Neuberger said at paragraph 46:

“…. as a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies. Of course, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, it seems unlikely that the legislature can have intended that judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of re-housing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge.”

At paragraph 62, he commented on:

“….how inapt it is for the courts to interfere with housing allocation schemes, save in clear and exceptional circumstances. This follows from the striking imbalance between supply and demand for housing, the very large number of families with an urgent need to be housed under Part VI of the 1996 Act, and the almost infinite number of different permutations of circumstances giving rise to the urgency. Knowledge of the circumstances of applicants generally, long term strategy considerations, expertise, political and social awareness, and local knowledge all have a part to play when it comes to formulating and implementing a housing allocation scheme. With information essentially consisting of the scheme itself, the circumstances of the particular applicant and a few statistics (of questionable mutual consistency), the court should be very slow indeed to second guess” the local authority concerned.

Ahmad predated the Equality Act 2010 and does not address the 2010 Act’s predecessor legislation. But in my judgment, the statements of general principle which I have set out apply with considerable force to the questions whether the measure adopted was the least intrusive possible without compromising the objective and whether it struck the right balance.

Here, the Council has devised a scheme which seeks to address the needs of all the classes of applicant in its area. It has made provision for those with priority need, for the homeless and vulnerable, for those who need to move on medical or welfare or hardship grounds. It is entitled, consistent with the Secretary of State’s Guidance, to favour those in work and those who volunteer.

I can see no measure less intrusive, less likely to be detrimental to the Claimant, which would not undermine the legitimate objective identified by the council and to which I have referred above. To extend the class of volunteers to include all those who, like the Claimant, provide some measure of care for others living in other accommodation would inevitably reduce the ability of the council to cater for those who benefit from the reasonable preferences provided for by the scheme. To extend the class of working households to include those who cannot work because of the type of disabilities suffered by the Claimant would inevitably conflict with the legitimate preference to be given to those in work. The wider the class the less valuable the benefit of being within it.

Even though this allocation scheme does, in my judgment, discriminate against those with the sort of disabilities of which the Claimant complains and against women, especially women who have unpaid caring responsibilities, in my judgment the Defendant has shown that it has adopted a scheme which was the least intrusive possible and which struck the right balance.

I am reinforced in that view by the existence within the scheme of provision for exceptional cases. Paragraph 1.1.10 provides that “Any provision in this scheme may be waived in exceptional and limited circumstances at the discretion of the appropriate senior officer…”. It is apparent from that provision that the Council has, very properly, reserved to itself the right to remedy particular incidents of unfairness thrown up by the operation of the scheme. It has a “safety valve”.

That is just one respect in which this case differs on its facts from that considered by Judge Waksman in R (H) v Ealing LBC. But questions of justification will always turn on the facts of the particular case. In the Ealing case, Judge Waksman found the discrimination could not be justified; here I find it is.

In those circumstances, and for those reasons, this claim is dismissed.