“[22]… Castigating a scheme as irrational is of little help to anyone unless a rational alternative can be suggested. Sometimes it may be possible to do this. But where the question is one of overall policy, as opposed to individual entitlement, it is very unlikely that judges will have the tools available to make the choices which Parliament has required a housing authority to make.” That was because,

“[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.” The previous coalition Government’s localism agenda also adopted a similar “hands off” approach in England. While every scheme would still have to give a reasonable preference to certain classes of people (e.g. the homeless and those in overcrowded accommodation), individual authorities could determine the priority each group were to be given within the scheme and could even exclude certain classes of people from the scheme: s.160ZA and s.166A, Housing Act 1996 (as inserted by Localism Act 2011). The new statutory guidance, issued in 2012 to accompany the changes made by the Localism Act 2011, also encouraged authorities to use this flexibility to support working households with a low income: Allocation of accommodation: guidance for local housing authorities in England, para.4.27. One would have thought that the combination of Ahmad, the Localism Act 2011 amendment and the statutory guidance ought to have shut the door on the majority of successful challenges to authority’s allocation schemes. This was, by and large, the case for the first five years after Ahmad. For example, in R (Hillsden) v Epping Forest DC [2015] EWHC 98 (Admin), a scheme which prevented an applicant who had not been resident in the authority’s district for more than three years from ever joining the waiting list, whatever the circumstances, was lawful. A “hands off” approach is not the same, however, as giving authorities carte blanche to frame schemes in any way they see fit. The 2012 Guidance reminded authorities that

“[3.20]… In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in s.166A(3) to give overall priority for an allocation to people in the reasonable preference categories.” Two cases concerning Ealing’s scheme have illustrated the court’s increasing willingness to hold aspects of schemes as being unlawful which, on their face, appear to be following the statutory guidance. R (H & others) v Ealing LBC [2016] EWHC 841 (Admin) In R (H & others) v Ealing LBC, Ealing’s scheme was challenged for a second time (see below for the first challenge). Ealing’s scheme provided that 20% of allocations would be made to people who did not necessarily have a reasonable preference but who were either working at least 24 hours a week or who were an existing secure tenant who had complied with their terms of tenancy. This was therefore precisely the sort of scheme that the Government had encouraged authorities to adopt in its statutory guidance.    H argued, however, that the scheme put women, the disabled and the elderly at a disadvantage because they were much less likely to be able to satisfy the qualifying criterion of working 24 hours per week. Accordingly, the scheme indirectly discriminated – under s.19, Equality Act 2010 and Art.14, ECHR – against such people and was discrimination which could not be justified. Ealing contended that the fact that those persons were still entitled to apply for the remaining 80% of council properties meant that the scheme as a whole did not discriminate against women, the disabled or the elderly or, if it did, it could be justified. The High Court held, however, that the evidence showed that since the scheme had been amended the number of allocations made to disabled persons had fallen by 3%; in the absence of an explanation for this fall it followed that there was prima facie evidence of disadvantage to disabled persons. Nor could the discrimination be justified. Other authorities, who had adopted similar schemes, had adopted a “safety valve” which meant that people who could not work because of their age, disability or responsibility for caring for a disabled child were still eligible to bid for the same properties as those who had worked 24 hours a week. It followed that this less intrusive measure could have been adopted. The court found that the result was the same under both the Equality Act and the ECHR as the test for justification under the ECHR for policy made by local authorities was not whether the policy was “manifestly without reasonable foundation”. In any event, Ealing had also breached s.149, Equality Act 2010, i.e. the failure to have due regard to the public sector equality duty, because it had not made any real enquiry into the potential discriminatory effects of the part of the scheme that excluded people who were not working 24 hours a week or more. Ealing had not been entitled to consider the scheme as a whole when considering the impact the change would have. Likewise, Ealing had failed to have regard to the need to safeguard and promote the welfare of children under s.11, Children Act 2004. No consideration had been given to how children would be affected. While it would be surprising if this was not appealed (the finding that an authority is unable to justify discrimination that arises under a local lettings policy by reference to the rest of the scheme is a particularly surprising development which appears to cut across the whole localism agenda), it does evidence the courts' new willingness to interfere in questions of allocations policy that, post Ahmad, it had generally ceased to. R (HA) v Ealing LBC [2015] EWHC 2375 (Admin) The statutory guidance (referred to above) also envisaged that authorities had the power to exclude certain classes of people from an authority’s scheme who had a reasonable preference and explained that this might apply to persons who are guilty of anti-social behaviour and who did not have a local connection to the authority’s area: 2012 Guidance, paras 3.21-3.22. This power to adopt a residency requirement was emphasised in further guidance published in 2013 (Providing Social Housing for Local People).  In the 2013 Guidance the Secretary of State said that he believed “that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach”: para.13. Moreover, in R. (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438; [2015] HLR 5, the Court of Appeal held that such a requirement was lawful: authorities could exclude people with a reasonable preference from applying for accommodation provided that the reason for the exclusion was because of something that was unrelated to the circumstances that gave rise to their reasonable preference. Authorities could not, however, exclude people, as a class, from applying under the scheme by reference to their reasonable preference. One of the lawful examples given by the Court of Appeal was, however, where a scheme had a residency requirement. Surprisingly, in R (HA) v Ealing LBC, the High Court held that a scheme that excluded people, other than in exceptional circumstances, from applying for accommodation who had not been resident in the borough for more than five years was unlawful because it excluded people with a reasonable preference. That, however, belies a total misunderstanding of the decision in Jakimaviciute and is in direct contradiction of the statutory guidance and Hillsden. More interesting was the argument concerning discrimination. Ealing had, perhaps unwisely, not given effect to the statutory guidance which had suggested that:

 “[3.22] … [W]hen framing residency criteria, authorities may wish to consider the position of people who are moving into the district to take up work or to escape violence, or homeless applicants or children in care who are placed out of borough.” HA had suffered domestic violence at an address in Hounslow. As a result, she had left this address and applied to Ealing for assistance under Part 7, Housing Act 1996. Ealing decided that it owed her the full duty under s.193(2). She subsequently applied to join Ealing’s housing register. Her application was, however, rejected because Ealing’s allocation scheme provided that, absent exceptional circumstances, applicants who had not lived in Ealing for the last five years could not apply for accommodation under Part 6. As in the latter case of H, HA argued that the scheme breached the Equality Act 2010, ECHR and s.11, Children Act 2004 on the basis that women are more likely to be victims of domestic violence than men and so are significantly less likely to be able to establish sufficient residency criteria to meet the blanket qualifying criteria. The High Court agreed. The scheme had discriminated against women and the discrimination could not be justified. What was interesting was the court’s dismissal of the argument that the “exceptional circumstances” provision in the scheme prevented any discriminatory conduct, holding that “the residual discretion permitted by the policy does not save it if there is no justification for the difference”, at [30]. As there was no justification for the difference in treatment the scheme was held to be unlawful. Presumably, this means that an authority will have to identify all the potential ways in which the scheme may unlawfully discriminate against persons and prevent it accordingly unless it can be justified. While this may be possible in obvious cases of discrimination - and indeed ought to have obviously included those moving to escape domestic violence – it is impossible to identify every case of discrimination before it arises. Moreover, discrimination cannot be justified unless it is foreseen first or there is a residual discretion that can ameliorate its effect as and when it arises. Therefore a scheme that contains has an exceptional circumstances provision ought to justify any discrimination provided the authority can show that it is exercised to prevent discrimination. In the bedroom tax cases (see The ever confusing tale of the bedroom tax), the Court of Appeal has held that a discriminatory scheme can be justified by the exercise of a residual discretion (in that case the provision of discretionary housing payments). After all, a scheme is only discriminatory (be it under Art.18, TFEU, Art.14, ECHR, or s.19, Equality Act 2010) if its effect is to actually disadvantage people of a certain class in comparison to those of another class. A scheme which permits officers to depart from the local residence provision is not discriminatory if in practice officers do so to prevent unlawful discrimination from occurring. This also accords with the needs of any scheme to be flexible enough to prevent injustice from occurring. This though appears to have been a point that was not considered in HA. That is not to say that the result in HA was necessarily wrong. The failure to apply the exceptional circumstances provision to HA was both discriminatory and plainly irrational. However, that ought to have been the basis for the decision not that the scheme itself was unlawful. Conclusion Both cases, in addition to Jakimaviciute, illustrate the court’s re-found lack of deference to authorities’ allocation schemes. Although the arguments are dressed in new clothing they are not at all dissimilar to the arguments that preceded Ahmad, i.e. the court should intervene where an allocation scheme is not providing sufficient priority to the more vulnerable groups in society. It is certainly questionable, however, whether that is an approach that a court is equipped to take. Lady Hale certainly didn’t think so in Ahmad. This should, however, be an encouraging development for advisers of applicants wishing to challenge schemes as almost every scheme will, by its nature, be discriminatory as it gives priority to some groups over others. Whether it accords with the underlying reasoning in Ahmad or was the intention of the Localism Act 2011 is another matter entirely.