The courts have previously confirmed that in principle, a residence requirement as a qualifying criterion in an allocation policy is not unlawful by itself, and can be applied to individuals in reasonable preference categories. However, it must be done carefully as to not unlawfully discriminate under the Equality Act 2010 or the European Convention on Human Rights.  

In the case of R (on the application of HA) v Ealing LBC [2015] the court ruled that a blanket five-year residence requirement was unlawful as it indirectly discriminated against women fleeing domestic abuse to whom the authority had accepted main housing duty. Essentially, without the residence requirement, such women would be entitled to reasonable preference under the scheme. There was no reasonable justification for discrimination, and therefore it presented a breach of Article 14 ECHR and section 19 of the Equality Act 2010.  

Recently, the court has taken a similar approach in the case of R (On the Application Of TX) v Adur District Council [2022].  

Adur District Council adopted a policy which placed successful applicants into one of four bands: A (highest priority), B, C or D. The policy restricted applicants from accessing the two highest bands if they did not meet a two-year residence requirement. Following a judicial review, the court held that although the policy was drafted in neutral terms, it indirectly discriminated against women and was therefore in breach of Article 14 ECHR and section 19 of the Equality Act 2010.  

This was because women were overwhelmingly more likely to be victims of domestic abuse and as a result forced to move to another area. In this case, there was also no evidence to show that the Defendant had considered the effect of the policy on women fleeing domestic abuse and conducted a proportionality exercise. 

Recent ruling in the case of R (On the Application Of TX) v Adur District Council shows that social housing providers must consider the effect of any residency requirement within allocations policies on women and, specifically women fleeing domestic abuse, not only when introducing a blanket residence requirement, but also when adopting criteria for allocation.   

 

Law is correct as at 23rd January 2023 

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. You are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon as legal advice. No liability is accepted for any error or omission contained herein.