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

MR JUSTICE CRANSTON: The issue in this judicial review is whether Islington London Borough Council ("Islington Council") were entitled to ignore the claimant's adult children, who are subject to immigration control, when considering the allocation of accommodation under Part VI of the Housing Act 1996. In particular, the question arises as to whether Islington Council may conclude that the claimant's adult children are not part of her household under their allocation policy. In practical terms, the case boils down to whether, in exercising their powers under Part VI of the Housing Act 1996, the Council can refuse to allocate larger accommodation to the claimant. The challenge is by way of judicial review in relation to a decision set out in letters dated early last year, whereby Islington Council decided to exclude the claimant's five adult children in their assessment of what constituted suitable accommodation under their allocation policy.

The claimant arrived in the United Kingdom from Nigeria in 1991 and claimed asylum. There is no need to enquire into the details of that claim, because in 1994 she married her first husband, a British citizen. In 1998 her five children joined her from Nigeria. In 2000 she and her children moved out of the accommodation they then enjoyed following, on her account, domestic violence perpetrated by her first husband. Eventually the claimant made a homelessness application and Islington Council accepted that they had a duty to her in June 2003. The family were provided with bed and breakfast accommodation in Kings Cross and were then placed in four-bedroom-type bed and breakfast accommodation for a period of 2 years. Subsequently, they were given accommodation in a four-bedroom property. However, that property was to be demolished and the claimant was granted an increased points level in keeping with her application to Islington Council to provide alternative temporary accommodation under Part VII of the Housing Act 1996. Initially, the claimant had been offered another four-bedroom property, which was refused. In June 2007 she was offered an alternative three-bedroom property in Airdrie Close, N1 and a tenancy agreement was completed in the middle of July 2007. The landlord is a housing association. The claimant accepted the offer reluctantly, concerned as to the overcrowding that resulted. It is common ground that the property is overcrowded. At the date of Islington Council's decision, the claimant lived at that property with her second husband, whom she had married in April 2005. At the time there were also five adult children: three daughters aged 22, 29 and 31, and two sons aged 24 and 27. In addition, there were three grandchildren, all under 2 years of age. Subsequently, the two sons have left the property, one having been removed to Nigeria and the other having married and moved out with his partner.

The claimant's application under Part VI of the Housing Act 1996 is for permanent accommodation. There is a long correspondence between the claimant's representatives and Islington Council. The story can be taken up with the letter from the claimant's legal representatives on 28th November 2007, where the family members are identified — the husband, the five adult children and the three grandchildren — and the argument advanced that the claimant is entitled to a much larger property under the allocation scheme of the Council. Islington responded in the middle of December 2007 and said that the claimant's accommodation was offered to her and her grandchildren:

There are three areas of legislation relevant to this judicial review. The first concerns the general statutory duty to house on local authorities, the second is the obligation of councils to have an allocation policy and the third relates specifically to the obligation to persons who are subject to immigration control.

Under section 159(1) of the Housing Act 1996, a local housing authority is required to comply with Part VI of the Act in allocating accommodation. "Allocation" is defined in section 159(2) to involve the selection, or nomination, of a person to be a secure or assured tenant of either local authority housing or housing provided by a registered social landlord. Section 159(7) reads:

The considerable discretion conferred on local authorities, recognised by Simon Brown J, is echoed in the recent decision of the House of Lords in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413. That was a case where the local authority had appealed against a decision of the Court of Appeal that it, the local authority, had erred in law in finding that the respondent father did not have a priority need for housing because he was not a person with whom the dependent children "might reasonably be expected to reside" under the homelessness provisions of the Housing Act 1996. The Court of Appeal had held that once a family court had decided that residence between parents should be shared, the housing authority could not deny that the children "might reasonably be expected to reside" with the applicant for the purposes of section 189(1)(b) of the Act. The House of Lords allowed the appeal and held that the two issues — the one before the family court and the one before the housing authority — were different. The House of Lords said that the social norm, that children should be able to live with both parents, had to be applied in the context of a scheme for allocating scarce housing resources. The Court of Appeal had fallen into error in holding that the fact that housing is a scarce resource should be regarded as irrelevant to the question of whether it is reasonable to expect children to live with a homeless parent. The two procedures for deciding different questions should not be allowed to become entangled. In the course of his speech, with whom the other law lords agreed, Lord Hoffmann said that there was no reason in logic why the fact that Parliament had made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the applicant should require that question to be answered without regard to the purpose for which it was being asked, namely to determine priority in the allocation of a scarce resource. Lord Hoffmann said that to ignore that purpose would not be a rational social policy. It did not mean, he said, that a housing authority could say that it did not have resources to comply with its obligations under the Act. Parliament had placed upon it a duty to house the homeless, but "so far as the criteria for those priorities involve questions of judgement, it must surely take into account the overall purpose of the scheme" (para 16). Later Lord Hoffmann said:

Section 167(1) of the Housing Act 1996 obliges each local housing authority to have an allocation scheme for determining priorities and for setting out the procedure to be followed in allocating housing accommodation. Under section 167(2) the scheme is to be framed to secure that reasonable preference is given to the various groups identified, one of the groups being those in overcrowded housing (167(2)(c)). Under 167(8) a local housing authority must not allocate accommodation except in accordance with their allocation scheme:

In Sahardid v Camden London Borough Council [2004] EWCA Civ 1485, (2004) HLR 11, the Court of Appeal had before it a case where it was accepted that the applicant was unintentionally homeless and had priority need. The housing allocation scheme provided that a single mother, like the applicant, with a child under the age of 5, would ordinary be entitled to one-bedroom accommodation only. By the time of the council's review, the applicant's son was 5 years old. It was submitted on her behalf that the review letter had failed to consider the age of her son and the wording of the council's allocation scheme. The Court of Appeal held that the law required the council to allocate accommodation in accordance with its allocation policy and it had failed to do so. The council had failed to consider whether the applicant was entitled to two-bedroomed accommodation by virtue of the age of her son. In its allocation scheme the council had identified a cut-off of 5 years. It was the duty of the council to address the implications of the applicant's son reaching that age. The council, in the finding of the Court of Appeal, had not carried out a review which took account of its own policy. Accordingly, the Court of Appeal quashed the council's decision. Sir William Aldous said this:

Under the Housing Act 1996 certain categories of persons are ineligible for the allocation of social housing. The provisions have recently been amended by schedule 15 of the Housing and Regeneration Act 2008, but no point arises in relation to that amendment. The relevant provision applicable in this case is section 160A. As a result of the Homelessness Act 2002, that replaces a similarly-worded provision, section 161(2), in the original version of the 1996 Act. Under section 160A(3), a person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is ineligible for an allocation of housing accommodation by a local housing authority, unless he or she falls into a class prescribed by regulations made by the Secretary of State. There are no relevant regulations in this case.

Section 160A, or at least its predecessor, provision section 161(2), was examined in R (Kimvono) v Tower Hamlets London Borough Council. In that case the applicant, who had arrived in the United Kingdom in 1991, and had applied for asylum. He had been granted exceptional leave to remain, along with his son, in 1999. In January 2000, following his 13-year-old daughter's arrival in the United Kingdom, he made a further application for assistance as a homeless person under what had become Part VIII of the Housing Act 1996. The local authority decided that because the applicant's daughter was subject to immigration control, they could not take her into account in considering the application. Accordingly, they decided that the applicant would be eligible for a two-bedroom, rather than a three-bedroom, property. Collins J held that what was then section 160(2), now section 160A(3), only prohibited an authority from allocating accommodation to an applicant who was subject to immigration control. The immigration status of an applicant's dependent — in this case the 13-year-old daughter — was irrelevant. Because the applicant had been granted exceptional leave to remain he, and all his dependents, were no longer subject to the prohibition in section 161(2). Collins J said that it was perfectly clear that the relevant provisions of Part VI, dealing with allocation, were concerned with a person who is to be, or may become, the tenant of the relevant accommodation. It was not, and could not reasonably be construed as, covering any dependent child:

Mr Gallivan, for the Council, submits that I should decline to follow Kimvono, on the basis that Collins J did not consider the earlier authority of Akinbolu v Hackney London Borough Council [1997] 29 HLR 259. The issue in Akinbolu was whether a local housing authority was capable in law of granting a tenancy to an overstayer, alternatively whether, if a grant were made, it would amount to a secure tenancy. The Court of Appeal found against the local authority on both issues. In doing so it expressly approved the principles set out by the Court of Appeal in R v Hillingdon London Borough Council, ex parte Streeting [1980] 1 WLR 1425 and R v Secretary of State for the Environment, ex parte Tower Hamlets London Borough Council [1993] QB 632. In Tower Hamlets Sir Thomas Bingham MR observed that the legal rationale underpinning the rule that housing authorities had no duty to house those unlawfully in the United Kingdom could not be derived from any process of construction of the Housing Act 1985 or the Immigration Act 1971. Rather, it derived from common sense, fortified by the provisions of the Immigration Rules and the observations of the Court of Appeal in Ex parte Streeting, Sir Thomas Bingham MR observed:

The claimant contends that Islington Council misdirected themselves in law in the way they assessed what was proper accommodation for the claimant by ignoring the presence of the five adult children and by only allowing the family to bid for two-bedroom-type accommodation. In doing that, it is said, they failed to follow their own published allocation scheme. It is said that they therefore acted unlawfully in meeting their duty to give preference to those suffering overcrowding, as required by section 167(2). Finally, it is said that the Islington Council assessment that the adult children did not form part of the household was Wednesbury unreasonable.

The arguments centring on the immigration status of the claimant's children were, in the submissions of Mr Fitzpatrick, such that no statutory provision, certainly not section 160A itself, or generally in Part VI of the Act, prevented the inclusion of the claimant's adult children in being considered in the claimant's application. In his submission the approach of Kimvono should be followed. In terms of the allocation policy, and whether the adult children were part of the claimant's household, Mr Fitzpatrick referred to the defendant's housing allocation scheme. That provides, in paragraph 2.2, entitled "Splitting large households":

My construction of section 160A(3) of the Housing Act 1996 is consistent with the decision of Collins J in Kimvono, that is, that a local authority is not prevented by the legislation from taking into account that the person to whom a tenancy is to be allocated has those subject to immigration control in his household. Parliament has had ample opportunity over the years to overturn that interpretation if they so desired. However, that does not mean that a local authority must necessarily take those persons into account in allocating housing. It will be recalled that in Kimvono itself, Tower Hamlets Council had decided that they were prevented from taking into account those in the applicant's family who were subject to immigration control. In the present case, Islington does not contend that its decision is required by section 160A. The Act confers a wide discretion on local authorities in allocating housing. Section 159(7) makes that clear. That is as it should be. Local authorities have the on-the-ground knowledge to make allocation decisions. They 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 that 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 judgement, Islington Council were entitled to adopt the interpretation that they have. This is not, in my view, a case where they have departed from their policy, or failed to apply their policy, but 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 was obvious in at least one of the letters to which I 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 the result, I refuse the application for judicial review and refuse the various orders applied for by the claimant.

Yes, Mr Fitzpatrick?

MR FITZPATRICK: My Lord, thank you for such a detailed judgment. I do apply for permission to appeal. It is really on the issue of whether or not the authority were entitled to, in the way they assessed "household", without anything in their allocations policy -- we say that your Lordship is wrong to have allowed them that latitude to take all those various matters into account without having anything in published policy. We say that is wrong, because the published policy is the document that persons go to and, in the absence of anything else, "household" cannot be given such a wide definition. So, on that footing, I apply for permission to appeal.

MR JUSTICE CRANSTON: I think it is a separate point from what Collins J decided in Kimvono but, nonetheless, I think that you need to go elsewhere.

MR FITZPATRICK: Of course.

MR GALLIVAN: Can I have my costs, please?

MR JUSTICE CRANSTON: Yes.

MR GALLIVAN: I am grateful, subject to the usual caveat and detailed public funding for my learned friend.

MR FITZPATRICK: Yes. My Lord, we are publicly funded.

MR JUSTICE CRANSTON: Yes. Thank you, and thank you for the helpful way in which the case was presented.