As a socio-legal academic, I just love it when a court has to deal with “the empirical evidence” (and, as an occasional qualitative researcher, also love it when quals are regarded as superior to quants). In R(TW)(No 2) v Hillingdon LBC  EWHC 157 (Admin), the question for Rowena Collins-Rice, sitting as a Deputy High Court Judge, went one better in that she had to consider the methodological adequacy of Hillingdon’s review of the effect of its 10 year exclusion policy on Irish Travellers. The Deputy Judge found that review was inadequate because the evidence base of the effects of the policy was insufficient.
First, some background: The Localism Act 2011 amended the Housing Act 1996, Part 6, to enable local authorities to set out qualification criteria for joining their housing register. One such qualification criterion might be length of residence or local connection. Lawfulness of such a criterion will depend on the balance between, on the one hand, localism as a beneficial objective and the disadvantage on those with protected characteristics, in this case Irish Travellers. In order to make that assessment, one needs evidence – and what is in issue in TW(No. 2) is the quality of that evidence.
Hillingdon’s housing allocation scheme excludes households who have not been living in Hillingdon for 10 or more years from joining their housing register, unless they are statutorily homeless or within the reasonable preference categories. In TW (No. 1)  EWHC 1791 (Admin) (our note), Hillingdon’s policy was held not to be proportionate in respect of Irish Travellers (cf R(YG) v Hillingdon LBC  EWHC 1937 (Admin) – our note), because of “the paucity and inadequcy of their evidence” () and the likely disproportionate impact of the policy on them: “… there is no evidence that the council sought to assess the extent of the disadvantage on Irish travellers or considered whether it was justified or what might be done to reduce it. Further, there is no evidence from the council to show that a shorter period than ten years would undermine their stated objectives” ().
Following that judgment, which Hillingdon are appealing, they conducted a review, which concluded that the residence criterion was “a proportionate means of achieving Hillingdon’s legitimate policy aim of rewarding long-term attachment to the borough, thereby building a stronger community”. Two amendments to the policy were recommended:(a) those with a protected characteristic which has made it harder to comply with the residence requirement would be given priority where two or more applicants make a successful case for the same property; and the role of the hardship panel would be extended so that any household not meeting the residence requirement but with the highest housing need could be recommended for placement in that highest housing need band.
The preliminary question for the Deputy Judge was whether that review had been properly conducted, or, perhaps better expressed, was conducted with sufficient methodological rigour to satisfy the proportionality balancing exercise for the PSED. The review had struggled because of the inadequacy of the available datasets in determining numbers of Irish Travellers in Hillingdon – the Deputy Judge noted, though, that “The question of impact for present purposes is qualitative and comparative, rather than quantitative” (),, and, further:
As to numbers of Irish Travellers within the purview of the residence qualification, the Review indicates no empirical totals of any reliability at all. Again, that may not be significant in its own right; the question is the extent of any discriminatory impact on those concerned, whatever the numbers and even if the numbers are tiny. But it is significant for the operations which may be performed on those numbers.
The Deputy Judge went on to note that it was not the theoretical effects, but the effects in practice which were relevant. The empirical evidence presented int he review did not address this question. further, at , the difference in practice:
… seems to require rather more penetration into the realities of the experience of Irish Traveller housing issues than the Review comes near to. So what more should Hillingdon have been expected to do? On that question, it is entirely right for the Court to remind itself that the problem identified in TW (no.1) was total – there was no evidence that Hillingdon had made any efforts. It has now gone to the trouble of a Review. Administrative perfection is not to be expected, and Hillingdon’s housing department has many priority claims on its resources. No more than what is reasonable may be looked for. On the other hand, as Mr Wise put it, this was not just any old review. This was an evidential exercise to which the High Court had specifically directed Hillingdon’s attention, on the basis that it was an essential prerequisite to its legal entitlement to rely on a policy which otherwise indicated unlawful indirect discrimination.
There had been no convincing explanation as to why no expert advice and assistance (such as from the EHRC) had been engaged in the review, and nor was there evidence that Hillingdon had sufficiently interrogated their own internal datasets (eg case files and provision of Traveller sites). To put it another way, in the absence of quantitative data, and bearing in mind the necessity for considering the practical effects of the policy, what was required was qualitative evidence.
In the absence of the necessary data, the review “inevitably concludes that it cannot say what effect a shorter requirement would have on that impact” () – a fairly classic methodological critique. The revised hardship policy may alleviate the disproportionate effects but the lack of evidence made this assessment impossible.
Consequently, the review was insufficient to meet the requirements of TW(No.1) and the declaration in that case was to remain in force.