Ariemuguvbe, R (on the application of) v London Borough of Islington

This is an appeal against the order dated 24 February 2009 of Cranston J, dismissing the appellant’s application for judicial review of what was described in the judicial review claim form as the respondent’s failure to take the appellant’s adult children into account when deciding what accommodation was suitable under Part 6 of the Housing Act 1996 (“the Act”). As Cranston J pointed out in the introduction to his judgment, the practical question for the respondent was whether it should allocate larger accommodation to the appellant whose adult children were living with her.

The factual background is set out in paragraphs 2 and 3 of the judgment of Cranston J. In summary, the appellant arrived in the United Kingdom from Nigeria in 1991 and claimed asylum. Her asylum claim became academic because in 1994 she married a British citizen. In 1998 her five children joined her on visitor’s visas from Nigeria. In 2000 she divorced her first husband and in 2005 she married her second husband. Since June 2007 she and her second husband have been living in a three-bedroom property: 14 Airdrie Close, London N1 (“the property”). The landlord of the property is a housing association.

In correspondence with the respondent, the appellant’s solicitors contended that she was entitled to bid for a larger property under the respondent’s housing allocation scheme (“the scheme”). The scheme is points-based. It was argued on her behalf that the points to be allocated to her under the scheme should be increased to take account of the fact that her five adult children -- three daughters then aged 29, 31 and 22, and two sons then aged 27 and 24, together with three grandchildren, then aged 11 months, 1 and 2 years old -- lived with her and her second husband at the property.

The respondent disagreed. In a letter dated 19 February 2008 to the appellant’s solicitors the respondents said:

“It is the authority’s stance that your client’s adult children are not dependent children who could reasonably be expected to reside with the applicant. They are independent adult children with families and therefore should be able to make their own arrangements regarding housing.”

In another letter, also dated 19 February 2008, which was in fact sent on 17 March 2008 in response to a letter of 12 March from the appellant’s solicitors enclosing the judicial review claim forms and supporting witness statement, the respondent said:

“My authority considers that your client’s proposed challenge to its decision dated 19 February 2008 is misconceived. Your client’s adult children are subject to immigration control and have been admitted to the United Kingdom on condition that they do not work and have no recourse to public funds. They have no income and are being supported by your client, who wants them to live with her because she does not want to see them homeless. The provision of larger accommodation and required by your client in their own right would amount to recourse to public funds by her adult children and, accordingly, a breach of their conditions of entry to the United Kingdom.”

Pausing there, Mr Fitzpatrick on behalf of the appellant accepted that that statement was factually correct. The letter continues:

“In these circumstances the authority does not accept that your client’s adult children normally ‘reside’ with her within the meaning of Section 176 of the Housing Act 1996 […] For the above reasons, as well as those set out in its letter dated 19 February 2008, the authority considers that the decision not to take into account your client’s adult children in determining the suitability of any accommodation occupied by, or to be offered to, your client is lawful.”

Since the claim for judicial review was filed, the appellant’s two sons have moved out of the property. One was removed to Nigeria, the other married and moved out to live with his wife. There are now, we are told, five grandchildren living with the appellant and her second husband at the property.

The relevant statutory provisions are all contained within Part 6 of the Act. The Act has subsequently been amended by the Housing and Regeneration Act 2008. I will refer to the provisions as they were in force when the decision was taken by the respondent. Section 159(1) provides that the local housing authority:

“…shall comply with the provisions of this part in allocating housing accommodation”

Subsection 7 provides that:

“Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such a manner as they consider appropriate.”

Section 160A(1) provides, so far as relevant:

“A local housing authority shall not allocate housing accommodation --

(a)

to a person who is ineligible for an allocation of housing accommodation by that authority by virtue of subsection (3) or (5);

(b)

to two or more persons jointly if any of those persons is ineligible for such an allocation by virtue of subsection (3) or (5) […]

(3)

A person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is (subject to subsection (6)) ineligible for an allocation of housing accommodation by a local housing authority unless he is of a class prescribed by regulations made by the Secretary of State.”

Pausing there, while the immigration status of the appellant’s five children was, and still is, unclear, there is no doubt that they all were, at the time of the claim, persons subject to immigration control and were not of a class prescribed by the Secretary of State.

The relevant provisions of Section 167 are as follows:

“1)

Every local housing authority shall have a scheme [their allocation scheme] for determining priorities and as to the procedure to be followed, in allocating housing accommodation

(2)

As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to -- […]

(c)

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

(8)

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

Cranston J concluded that Section 160A(3) did not prevent the respondent from taking into account the appellant’s five adult children when allocating housing accommodation to her, but he added that this did not mean that the respondent must necessarily take them into account. He said that the Act conferred a wide discretion on local authorities in allocating housing and referred to Section 159(7). He continued in paragraph 14 of his judgment:

“[Local housing authorities] must, of course, act in accordance with their allocation policy. In this case, there is no challenge to the policy itself. The complaint is that Islington Council has failed to follow their published policy, in that they have not properly applied the concept of "household". In my view, the Council was entitled to interpret "household" by reference to its ordinary, everyday usage. It was up to them to decide whether these five adult children were members of the Claimant’s household. They decided these adult children ought not to be taken into account as part of the household, given their ages and also given their precarious immigration status. It will be recalled that in Kimvono, Collins J had referred to precarious immigration status as a factor to be taken into account. In the present case in my judgment, Islington Council were entitled to adopt the interpretation that they have. This is not, in my view, a case where they departed from their policy, or failed to apply their policy, rather they have adopted an interpretation which is a reasonable interpretation, given their knowledge, and given the circumstances of the applicant and her family. Moreover, it seems to me that Islington Council are also entitled to take into account the considerations which Sir Thomas Bingham MR mentioned in the Tower Hamlets case. That policy is encapsulated, as well, in the immigration rules. Islington, as it was obvious in at least one of the letters to which I have referred earlier, took into account the fact that, by granting accommodation in this case, there would be recourse to public funds by those subject to immigration control. In my view, it was entitled in its discretion to do that.”

In R [Kimvono v Tower Hamlets London Borough Council] [2001] 33 HLR 239 Collins J had to consider Section 161(2) of the Act, which effectively prohibited local housing authorities from allocating housing accommodation to persons who are subject to immigration control unless they fell within a prescribed class. Section 161 has since been repealed and replaced by Section 160A.

The applicant for housing accommodation in that case who was not subject to immigration control, sought accommodation for himself and his daughter, who was a child and was dependent on him. The applicant’s daughter was subject to immigration control. Collins J decided Section 161(2) of the Act applied to the applicant for accommodation and did not extend to a dependent of the applicant in question.

On behalf of the respondent, Mr Gallivan does not challenge the correctness of Collins J’s conclusion as to the ambit of Section 161(2) as it was then in force. He does, however, challenge Collins J’s further conclusion in paragraph 23 of his judgment that the applicant’s daughters’ immigration status was irrelevant for the purposes of the local authority’s Part 6 duties and could not properly be taken into account in the exercise of any discretion that the local authority had under Part 6. Mr Gallivan submits that this further conclusion is inconsistent with the Court of Appeal’s decision in Akinbolu v Hackney London Borough Council [1997] 29 HLR 259, a decision that does not appear to have been drawn to the attention of Collins J. In Akinbolu the Court of Appeal concluded that, under the legislation in force at that time [the Housing Act 1985], while local housing authorities were not required to accommodate homeless persons who were unlawful overstayers under Part 3 of the 1985 Act, if they did in fact grant a tenancy under Part 2 of the 1985 Act to an unlawful overstayer, then that tenant had the statutory protection that was conferred upon tenants by the 1985 Act. The judgment of the Court of Appeal contained the following passage on page 269:

“Insofar as an application is made by an illegal overstayer for a tenancy of local housing authority accommodation, the housing authority has the remedy in its own hands in the management of its housing list and in the questions in the application form to be filled out by the prospective tenant together with the interview. If the right questions are asked, in the vast majority of cases the immigration situation will be identified, in not its final resolution. The housing authority is free to make its own inquiries. If false answers are proven, Ground 5 will apply and it will be a ground for possession of the property. There will not be many cases where nothing is asked by the landlord nor answered by the tenant. The application of the policy by a housing authority to refuse to provide public sector housing to applicants who are illegal immigrants or overstayers could not be said to be outside the proper exercise of its powers under Part II (see by way of analogy Eastleigh BC v Betts [1983] 2 AC 613). In the present case the immigration status of the appellant might well have caused this housing authority, with knowledge of the facts, not to offer the appellant a tenancy. In any event, as we have already said, if the Immigration authorities have decided to deport, that decision will in itself resolve the issue.”

The only other authority to which it is necessary to refer is the Tower Hamlets case referred to by Cranston J in his judgment.

In R v The Secretary of State for the Environment ex p. Tower Hamlets LBC  [1993] QB page 632, Sir Thomas Bingham, Master of the Rolls, said at page 643:

“It is common ground that housing authorities owe no duty to house those, homeless or not, priority need or not, who require leave to enter and illegally enter without any leave. I agree with this view. It would be an affront to common sense if those who steal into the country by unlawful subterfuge were then be housed at public expense. But what is the legal rationale of this agreed rule? It cannot be derived from any process of construction from the Housing Act 1985 or the Immigration Act 1971. It can only I think be the inference, derived from common sense and fortified by the Immigration Rules [in R v Hillingdon London Borough Council ex parte Streeting [1981] WLR 1425] that Parliament cannot have intended to require housing authorities to house those who enter the country unlawfully. If this is the correct rationale of the agreed rule, I cannot see why the position of those who enter unlawfully by fraudulently obtaining leave to enter should be differentiated from the position of those who enter unlawful by evading the requirement to obtain leave to enter altogether.”

In Akinbolu the Court of Appeal endorsed the principles that the Master of the Rolls had set out in Streeter (see page 268 of the judgment of the court in Akinbolu).

As Mr Fitzpatrick pointed out during the course of his submissions, the position of those who have entered illegally, or who are overstaying illegally, has now been addressed by Parliament and there are various provisions to which he referred us which are contained in the Act which now deal with the position.

On behalf of the appellant, Mr Fitzpatrick submitted that there is no definition of household in the scheme and that adopting the ordinary meaning of “household” the appellant’s five children were part of her household. They lived with her and, since they arrived in the United Kingdom in 1998, applying the approach of Collins J in Kimvono, their immigration status was irrelevant unless their position was precarious in the sense that they were at risk of imminent removal. On the facts of the present case there is no evidence of such a risk, the appellant’s children having been living in the United Kingdom for some ten years at the time of the claim.

In my judgment Cranston J was right to reject the application for judicial review for the following reasons. The starting point must be section 159(1) of the Act which required the respondent to comply with Part 6 of the Act when allocating housing accommodation to the appellant. Subsection 159(7) makes it clear that, subject only to Part 6 of the Act, the respondent had a very broad discretion to allocate housing accommodation in such manner as it considered appropriate. Unless prevented from doing so by some other provision in Part 6, the respondent was, in my judgment, entitled to conclude that it was not appropriate to allocate a larger property to the appellant, because the five children who she wished to be accommodated with her were a) all independent adults some having families of their own who should have been able to make their own housing arrangements; and b) subject to immigration control in circumstances where providing accommodation for them would amount to them having recourse to public funds in breach of their conditions of entry to the United Kingdom.

The potential relevance of the ages of an applicant’s children, and the fact that they are adults, would be, one would have thought, a matter that was beyond dispute given the breadth of the discretion conferred by subsection 159(7). While Section 160A(3) did not compel the respondent to refuse to allocate a larger house to the appellant on the basis that her children were persons subject to immigration control, there is nothing in the Act to prevent the respondent from taking into account what would, on the face of it, appear to be a highly material consideration when deciding what size accommodation should be provided to an applicant. Collins J in Kimvono was addressing the particular circumstances before him. It is to be noted that in paragraph 22 of his judgment, having referred to the fact that the applicant’s child in that case was a dependent child, he said:

“Her immigration status is, in the circumstances of this case, irrelevant to the local authority's duties in that regard. Naturally, the Council could regard issuing return status as material if satisfied that the dependant's position in this country was as a matter of fact precarious. But that is not the position here.”

Thus Collins J acknowledged that there would be circumstances in which the immigration status of an applicant’s child was capable of being legally a relevant consideration.

Had Collins J been referred to the Court of Appeal’s decisions in Tower Hamlets and Akinbolu, I have little doubt that he would not have concluded that the applicant’s daughter’s immigration status was, as a matter of law, an irrelevant consideration for the purposes of the local authority’s allocation decision under Part 6 of the Act. Since the daughter in that case was a child who was very clearly dependent on her father, her immigration status might well have been a factor to which relatively little weight could reasonably have been attributed, but it was not, as a matter of law, incapable of being a relevant consideration. Mr Fitzpatrick drew our attention to the manner in which Parliament had amended various provisions of the Act so as to prohibit local housing authorities from providing accommodation to certain categories of persons from abroad subject to immigration control. He submitted that those provisions were an indication that, unless the applicant’s children in the present case fell within those provisions, their immigration status could not be considered to be relevant by the respondent.

In my judgment, those provisions to which Mr Fitzpatrick drew our attention simply delimit the area within which local housing authorities are free to exercise the very broad discretion conferred upon them by the Act under Section 159(7). They do not prescribe the factors which a local housing authority may or may not take into consideration when exercising their discretion within the limits set by those statutory prohibitions. Thus the respondent was entitled to take into account the fact that the appellant’s five adult children would not be entitled, if they had applied for accommodation in their own right, to be provided with accommodation by the respondent.

Is there any provision in the Act which prohibited the respondent from taking these two factors into account? Mr Fitzpatrick pointed to Section 167(8) which required the respondent to allocate housing accommodation in accordance with the scheme, but, if the scheme is to be relied upon by the appellant, both the precise wording of the scheme and its legal status are relevant. Looking first of all at the wording of the scheme, paragraph 5.1, which gives an overview of the points scheme, says this:

“In general applicants are selected for rehousing according to a points scheme. Applicants are given points for housing need factors, and these points are added together.

The needs of all individuals in the applicant’s household will be taken into account when points are awarded…”

Mr Fitzpatrick concentrated upon the word “household”, but the sentence has to be read as a whole and, since this is a local authority housing allocation scheme and not an enactment, it has to be read in a practical, common sense, and not in a legalistic way. The scheme makes it clear under the heading discretionary powers that:

“The Allocation Scheme cannot cover every eventuality […] At various sections of the policy reference is made to rules for determining priority and eligibility for housing. In all these instances, subject to any legal constraints, discretionary powers may be used to deal with special cases which may need to be treated in an exceptional way.”

Even if it is assumed that the appellant’s five adult children were part of her household, it does not follow that their need as independent adults, in some cases with families of their own, was to live in the same accommodation as their mother. Their “needs” were wholly different from the needs of dependent relatives in the same household, for example, children or an elderly parent unable to make their own housing arrangements. The scheme does not say that points will be awarded for every individual who is in the applicant’s household. Yet that is the way that Mr Fitzpatrick invites us to construe the scheme. I am not inclined to do so. It seems to me that such a rigid approach to the interpretation of the scheme would be the antithesis of the common sense approach that is appropriate in cases such as this.

Turning secondly to the legal status of the scheme, since it is only a local authority’s housing allocation scheme and does not purport to be a comprehensive statement of the general law, it does not have to state the obvious: that is to say that the needs of all individuals in an applicant’s household will be taken into account by the respondent only insofar as it would be lawful and/or not contrary to wider public policy considerations for the respondent to meet those needs. If meeting a need of a particular individual would result in an unlawful recourse to public funds, then a local housing authority is entitled -- even if it is not bound -- to say that that need will not, as a matter of discretion, be taken into account when points are being awarded.

The appellant’s overcrowding argument adds nothing to the main submission advanced by Mr Fitzpatrick on her behalf. Section 167(2)(c) of the Act, was complied with by the respondent. There is no dispute that the scheme does indeed secure a reasonable preference to people living in overcrowded housing; thus we find in paragraph 5.2 of the scheme, under the heading “The Housing List Points”:

“Points are given to applicants on the housing list as follows […]

Social housing tenants who are overcrowded: 15 points;

sexual overcrowding, where two people of opposite sex have to share a bedroom and one is aged 10 years or older (unless they are either 16 or over and living as a couple): 10 points;

age overcrowding, where a person aged 16 or older has to share a bedroom with another person (unless they are both 16 or older and living as a couple, this includes parents having to share with their children): 10 points.”

The short answer to the appellant’s submission is that the appellant’s five adult children did not have to share the bedrooms in her three-bedroom house; they chose to do so, even though they were capable of leading their own independent lives as adults. It might be said: why did they choose to do so? The answer may well be: because they were overstayers, were not permitted to work and were not permitted to have recourse to public funds for themselves. That simply, in my judgment, illustrates the wisdom of permitting the respondent to take into account the immigration status of the appellant’s children. The fact that they were -- subject of course to their immigration status -- well able to lead independent lives is made plain by subsequent events, in that both of the adult sons have left the property, one being returned to Nigeria, the other to live in his own home with his new wife.

For these reasons I would endorse Cranston J’s conclusion that the respondent correctly applied the scheme interpreted in a common sense fashion to the particular circumstances of this applicant. I would, for my part, dismiss the appeal.

I agree.

I agree, and would just add this. While any document prepared for public consumption should be as clear, short and simple as possible, it is particularly true of housing allocation schemes required to be prepared under Section 167, and published under Section 168, of the Housing Act 1996. They are intended to be read by, and administered for, the benefit of people who require public housing and their families, and they are intended to be applied in multifarious different circumstances in which great difficulties can often arise. Isllington’s scheme provided in 2007 seems to me to be a document which complies with these requirements. It is plainly right for the court to apply a common sense and a practical approach to the interpretation of the scheme, and indeed an interpretation which allows a sensible degree of flexibility when it comes to dealing with individual cases. That this approach is appropriate is reinforced by the wide discretion given to local housing authorities by Section 159(7) of the 1996 Act, the reference to “reasonable preference” in Section 167(2), and the discretion afforded in Section 167(2)A.

The interpretation of the scheme urged on us, clearly and concisely, by Mr Fitzpatrick on behalf of the appellant in this case, seems to me to fall foul of this approach. The analysis just proffered by my Lord, Sullivan LJ seems to me to be entirely in accordance with this approach, and there is nothing I can usefully add to it.