HA, R (On the Application Of) v London Borough of Ealing

There is a shortage of housing in certain regions. In such areas, the demand for social housing exceeds supply and has done so for some time. This is a claim for Judicial Review of the Defendant’s revised Housing Allocations Policy dated October 2013 (“the policy”) and its decision dated 8.12.14 relating to the application of that policy to the Claimant’s case (“the decision”). Permission to bring this claim was granted on the papers on 14^th April 2015, it being conceded that the claim was arguable. An expedited hearing was ordered. On 2^nd July 2015, the Claimant was granted permission to rely on additional evidence, namely the witness statement of Polly Neate of the charity, Women’s Aid.

The Claimant is a mother of 5 children aged 17, 15, 10, 9 and 6 years respectively at the date of the decision. They are victims of domestic violence. Together with the children, she left the London Borough of Hounslow to escape further domestic violence in February 2014. On 9 June 2014 the Defendant accepted a full housing duty to her under section 193 (within Part VII) of the Housing Act 1996 (unintentionally homeless) and offered her accommodation on 17 November 2014. That accommodation was and is unsuitable for the size of the family; the Defendant has relatively recently withdrawn its decision that the accommodation was suitable. She awaits an offer of suitable accommodation.

The Claimant applied ‘online’ for accommodation in Ealing under Part VI of the Housing Act 1996 (as amended) (‘the Act’) on 4 December 2014. Her application to join the Defendant’s Housing Register was rejected in a ‘pro forma’ letter dated 8^th December 2014, the relevant part of which informed her that:

“Following changes to the Allocation Scheme, you do not appear to be currently eligible to join the Housing Register at this time. The changes include:

…

•

Households will not be able to register for housing in future unless they are able to demonstrate that they have been resident in the borough for five years.

...

Your online application has been removed.”

Although the reason for her ineligibility is unstated, it is clear that the operative fact was her not having been resident in the borough for five years. No indication was given as to whether consideration was given to the particular facts of her and her family’s case or as to whether the exceptionality provision within the Defendant’s policy, to which I shall refer later, may have applied to her or her children.

The six grounds advanced by the Claimant in support of her claim can be conveniently grouped under four main headings: -

The statutory code dealing with allocation of accommodation is contained in Part VI of the Act. The principal relevant provisions are sections 159, 160ZA, 166A and 169. They provide as follows:

The June 2012 statutory guidance, issued pursuant to s.169 of the Act, contains the following passages:

“3.18

Housing authorities may only allocate accommodation to people who are defined as ‘qualifying persons’ (s.160ZA(6)(a)). Subject to the requirement not to allocate to persons from abroad who are ineligible and the exception for members of the Armed and Reserve Forces in paragraph 3.27 below, a housing authority may decide the classes of people who are, or are not, qualifying persons.

. . .

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.

3.21Housing authorities should avoid setting criteria which disqualify groups of people……..

3.22

When deciding what classes of people do not qualify for an allocation, authorities should consider the implications of excluding all members of such groups. For instance, when 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.

…

4.4

In framing their allocation scheme to determine allocation priorities, housing authorities must ensure that reasonable preference is given to [the categories of people identified in s. 166A(3)]

…

4.13

Section 166A(3) gives housing authorities the power to frame their allocation scheme to give additional preference to particular descriptions of people who fall within the statutory reasonable preference categories and have urgent housing needs. All housing authorities must consider, in the light of local circumstances, the need to give effect to this provision. Examples of people with urgent housing needs to whom housing authorities should consider giving additional preference within their allocation scheme included:

The December 2013 statutory guidance, also issued pursuant to s.169, contains the following passages under the subheading “Qualification for social housing”:

“11.

Section 160ZA(6) provides that housing authorities may only allocate accommodation to people who are defined as ‘qualifying persons’ and section 160ZA(7) gives them the power to decide the classes of people who are, or are not, qualifying persons.

12.

The Government is of the view that, in deciding who qualifies or does not qualify for social housing, local authorities should ensure that they prioritise applicants who can demonstrate a close association with their local area. Social housing is a scarce resource, and the Government believes that it is appropriate, proportionate and in the public interest to restrict access in this way, to ensure that, as far as possible, sufficient affordable housing is available for those amongst the local population who are on low incomes or otherwise disadvantaged and who would find it particularly difficult to find a home on the open market.

13.

Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant’s household) to have lived within the authority’s district for a specified period of time in order to qualify for an allocation of social housing. The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years.”

15.

Housing authorities may wish to consider whether there is a need to adopt other qualification criteria alongside a residency requirement to enable and ensure that applicants who are not currently resident in the district who can still demonstrate a strong association to the local area are able to qualify . . .”

Part One of the Defendant’s policy, entitled ‘Housing Register’, provides:

“1.

Eligibility to Join the Housing Register (Homeseekers)

The Council maintains a Housing Register and the following persons are eligible to be put on it (these persons are referred to as ‘eligible persons’:

a)

persons aged over sixteen

b)

young persons leaving care, referred by Social Services under their quota arrangements

c)

persons in hospital, prison, or the armed forces whose last settled address was in the borough

d)

persons accepted by Ealing , for rehousing, under the Housing Moves Scheme, or other regional/ national mobility schemes that Ealing may participate in

e)

persons who the council considers should be eligible, on a case by case basis, due to exceptional circumstances or special needs

f)

assured tenants of registered social landlords, or other housing authorities who are residents within the borough

g)

other persons who are considered ‘eligible persons’ in accordance with current legislation

…

The Localism Act 2011 allows significant local control over who qualifies for housing and the priority given to national and locally determined groups that are assessed as in housing need. These flexibilities are now reflected in the policy.

…

The following persons are not eligible for entry onto the Housing Register for the allocation of social housing:

a)

persons disqualified under Part VI of the Housing Act 1996 and associated statutory instruments, on the grounds that they are subject to immigration control, except those allowed by the law

b)

persons not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland, except those allowed by law

c)

EU nationals required to leave the UK by the government

d)

Where the applicant, or any member of the household, have been found guilty of serious anti-social behaviour, the Council considers that they are unsustainable to be a tenant as a result, including but not limited to where:-

•

They, or any member of the household, have assaulted a member of staff and an injunction is being sought or has already been obtained

•

They, or any member of the household, who have knowingly given false or misleading information, or withheld information, that has been reasonably requested

e)

Households with a joint income of more than £60,000 or capital assets of more than £24,000

f)

Households that have not been resident in the Borough for the last 5 years.”

There follows an exception to disqualification on the grounds of a lack of a local connection in relation to categories of members and former members of the armed forces, their bereaved spouses and partners, in compliance with Regulations made by the Secretary of State pursuant to section 160ZA(8) of the Act. The policy then goes on:

“The Council retains the ability, in exceptional circumstances, to exercise it’s (sic) discretion when making decisions with regard to including persons on the Housing Register. Such persons will be referred to the Social Welfare Panel for agreement (e.g. where there is urgent housing need such as mental health issues, but has breached their tenancy agreement or is in the process of having legal action taken against them.)”

…

“2.

Right of Review

We will write to anyone who is being excluded from the register detailing our reasons. Homeseekers/ex members have a right to ask for a review of a decision to refuse, or terminate, their membership (see Appendix B, Review Procedure).”

The Defendant relies on witness evidence from William Dempsey, the Defendant’s Head of Allocations and Accommodation, and Lynne Duvall, the Defendant’s Project Manager, in support of these grounds. Those witness statements set out the history, structure and workings of the allocation scheme.

William Dempsey confirms that the Defendant owed the Claimant the housing duty under section 193 of the Act because she was not intentionally homeless and had priority need. By section 193(3) that duty continues until it ceases pursuant to some other provision of that section. He also explains that: -

The Claimant states that, being required by Social Services to choose another area to live by reason of the domestic violence, she persuaded the social workers that she wanted to live somewhere that would allow her older children to stay at the same secondary school and eventually they settled on Ealing. She chose Ealing so that they could keep their school places.

Polly Neate identifies the concerns of Women’s Aid about the imposition of residence criteria restricting access to social housing for women who, like the Claimant, have fled domestic violence and moved to a new area to find a place of safety. Data reveals that 89% of victims who experience four or more incidents of domestic violence are women and all available data shows that those experiencing domestic violence are overwhelmingly likely to be women. “Government statutory homelessness statistics show that domestic violence is consistently reported as the main reason for loss of last settled home with around 12-13 per cent of homelessness acceptances in England being for this reason”. She also states that “survivors of violence typically report that recovery from the serious impact of domestic violence cannot properly commence until secure long term and safe housing has been obtained”.

The Claimant’s case under this heading, put shortly, is that section 166A of the Act prescribes that every local housing authority must have a scheme for determining priorities which, by ss(3), shall be framed so as to secure that reasonable preference is given to those people identified in b., c. and d.. By ss (5) such a scheme may contain provision for determining priorities in allocating housing accommodation to people within ss (3), and the factors which the scheme may allow to be taken into account include “(c.) any local connection (within the meaning of section 199) which exists between a person and the authority’s district”. The role of local connection is to assist in determining priorities and not to act as a filter precluding access to the housing register at all. Put another way, a residency requirement or local connection is permissible in determining who may be admitted to a housing list provided it doesn’t preclude people who fulfil the ‘reasonable preference’ list. Section 160ZA provides that allocation shall only be available to those who are eligible and qualifying persons. The Guidance at 3.20 and 3.21 emphasises the need for local housing authorities to have regard to compliance with their duties under equalities legislation, the requirement in section 166A(3) to give overall priority to people in the ‘reasonable preference’ categories and the need to avoid setting criteria which disqualify groups of people “whose members are likely to be accorded reasonable preference for social housing” but they may adopt criteria which disqualify individuals who satisfy the reasonable preference requirements, for example, if such an applicant is disqualified on a ground of anti-social behaviour.

Reliance is placed on the decision of the Court of Appeal in R. (Jakimaviciute) v. Hammersmith and Fulham LBC [2014] EWCA Civ 1438. In that case, analysis of the statutory provisions relating to his case were considered and Richards LJ, with whom Tomlinson and Bean LJJ agreed, concluded (at paragraph 31):

“Moving on to section 166A(3) of the 1996 Act itself, it is an elaboration of the duty in section 166A(1) and requires the scheme to be so framed as to secure that reasonable preference is given to the classes specified in sub-paragraphs (a) to (e), including those who are owed a housing duty under section 193(2) of the 1996 Act. There is no sensible reason why it should be read as applying at any stage where the qualification criteria operated to exclude certain applicants from registration under the scheme. Thus, on the natural interpretation of the statutory provisions the setting of the qualification criteria is subject to the reasonable preference duty.” (My emphasis).

Although that was a case concerning a policy relating to the exclusion of applicants in long term temporary accommodation, it is submitted the ratio of the case is applicable to the Claimant in this case in exactly the same way: qualifiying criteria are not permissible if they do not meet the reasonable preference duty. The Claimant, it is accepted by the Defendant, is a person within a class entitled to reasonable preference under section 166A(3); the setting of criteria which significantly undermine the reasonable preference duty, by excluding her entirely from the register, renders the policy unlawful.

Further reliance is placed on the very recent decision in this Court of HH Judge Blair QC sitting as a Deputy High Court Judge in R. (Alemi) v. Westminster City Council [2015] EWHC 1765 (Admin). That case concerned a housing allocation scheme that excluded persons who become unintentionally homeless from the housing register for a period of time. It was found that the particular provision was unlawful because:

“28.

… section 166A(3) is about the ‘allocation’ of social housing to statutorily defined groups which must be given reasonable preference. The differentiation which is permitted by the legislation (and which the Courts should leave to the wide discretion afforded to a LHA and the democratic process) is restricted to adjusting the relative priority of sub-groups by reference to features which do nonetheless afford them some opportunity to be allocated social housing within the LHA’s current cycle, however remote that possibility might be.

…

31.

… This Amended Scheme carves out a whole sub-group which is altogether excluded from the potential of being allocated social housing for 12 months. The have no preference. Part VI of the Act does not permit the removal of a whole sub-group from a group which section 166A(3) requires be given reasonable preference in the allocation of social housing, when that sub-group is not defined by differentiating features related to the allocation of housing, but applies a simple time bar to all who otherwise qualify.”

The Defendant contends that the Claimant is not excluded from the register because the policy contains a residual discretion to include persons on the register. However, such discretion shall only be exercised ‘in exceptional circumstances’ and no criteria are identified as to when it will be exercised.

The Defendant, correctly identifies,

There being no exceptions for those in reasonable preference categories specified in section 166A(3) in the Defendant’s policy and the Claimant not having been resident in the Defendant Borough for the last five years, she was automatically deemed not eligible for entry onto the Housing Register for social housing. It was submitted on the Defendant’s behalf that the process could not permit examination of individual circumstances in each application to see if an applicant fell within a reasonable preference category. It was also submitted that, in practical terms, given the demand for social housing, almost no London Borough could adopt residence criteria which make exceptions for those in reasonable preference categories, in particular, homelessness.

In fact, four London Boroughs, each with residence criteria, have adopted policies that do. Islington, Newham, Redbridge and Waltham Forest, have policies that provide a form of exception to residence criteria where the applicants are owed a homelessness duty under Part VII of the Housing Act that the Authority has accepted. True it is that they form a small subset, but it is evidence of the ability to frame a housing allocation policy in a way that includes a residence requirement yet ensures that the reasonable preference duty is complied with.

The inability of the policy to identify those who meet the 166A(3) criteria but who do not fulfil the residency criteria highlights the consequences of the exceptionality provision. In this case, the Claimant’s application was, on the evidence, automatically rejected because she did not meet the residency criteria. No consideration was given to the 166A(3) criteria under the exceptionality provision, nor could it be under the Defendant’s policy. It is noteworthy that in R. (Jakimaviciute) v. Hammersmith and Fulham LBC and R. (Hillsden) v. Epping Forest District Council (ante) it was not argued that the exceptionality provision could save the authority’s policy. Moreover, paragraph 21 of the 2013 Statutory Guidance identifies in the section dealing with the need for the provision of exceptions from a residency requirement that “In addition, authorities retain a discretion to deal with individual cases where there are exceptional circumstances.” A distinction, therefore, is drawn between general exceptions for people in preference categories and individual applicants in exceptional circumstances.

Although a residency requirement is an entirely appropriate and encouraged provision in relation to admission onto a social housing list, it must not preclude the class of people who fulfil the ‘reasonable preference’ criteria. The Defendant’s policy does not provide for the giving of reasonable preference to prescribed categories of persons as required by section 166A(3) of the Act. In this respect the policy is unlawful.

Given my conclusion on Heading A, the remaining headings may be addressed relatively shortly.

The Claimant further submits that that the residency requirement gives rise to indirect discrimination against women victims of domestic violence. The premise of the submission is that the criteria disproportionately affect women as, on the evidence of Polly Neate, they are far 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.

This form of indirect discrimination was addressed by Hickinbottom J. in R. (Winder and others) v. Sandwell Metropolitan Borough Council (Equality and Human Rights Commission intervening) [2014] EWHC 2617 (Admin) in relation to the circumstances obtaining in that case at paragraphs 85-89, and in respect of which there was a finding of unjustified indirect discrimination. It is submitted that, by analogy with that case, the residency requirement is discriminatory against women, there being evidence of a discriminatory potential and an entire absence of any assessment of the discriminatory effects and justification of them.

The Defendant accepts (rightly, in the light of Mathieson v. Secretary of State for Work and Pensions [2015] UKSC 47) that female victims of domestic violence have status for the purposes of Article 14. Reliance cannot be placed, however, on the potential exercise of the residual discretion in an individual claimant’s favour as that is an exercise of an exceptional use of individual discretion and does not apply to the class as a whole.

Article 14 can only be considered as a parasitic right; it requires another article to be engaged. The issues in this case are whether the difference in treatment falls within the ambit of Article 8, thereby engaging Article 14, and whether the difference in treatment is justified in that it is a proportionate means of achieving a legitimate aim. Once it is established that there is a difference in treatment between men and women, it is for the Defendant to justify the discriminatory effect of the policy.

In determining whether the difference in treatment falls with in the ambit of Article 8, assistance can be gained from paragraph 17 of the Judgment of Lord Wilson in Mathieson (ante); there must be a link to another convention Article. The link here is said to be ‘home and family life’. There is no enshrined right to a physical home; the right is to the enjoyment of a family life. However, this can, in reality, only be enjoyed in settled accommodation. Accordingly, I am satisfied there is a sufficient link.

In these circumstances, it is the discriminatory effect of that has to be justified. The Defendant, as a public body is entitled to the appropriate measure of respect in relation to its decision. However, once the effect of the measure is discriminatory, justification of the policy as a whole on the grounds that it is to help those with local connection does not assist the Defendant. The Statutory Guidance (2012 paragraph 4.13 and 2013 paragraph 19) is actually supportive of victims of domestic violence. The residual discretion permitted by the policy does not save it if there is no justification for the difference. No assessment has been carried out of the anticipated beneficial effects of the policy on the one hand or the adverse effects on the other. In short, no rational justification has been advanced for treating women fleeing from domestic violence to the Defendant’s borough differently from other applicants for social housing.

Accordingly, I conclude that the residency criteria, by not permitting of exception of women fleeing domestic violence and in the absence of reasonable justification, is contrary to Article 14 and unlawful.

This heading is another aspect of the discrimination challenge. Although permission was not sought in relation to this ground in the original application, the Defendant has been on notice of it, responded to it and is not prejudiced by it being considered as a further ground. I therefore grant permission to the Claimant to proceed with this ground of challenge.

Section 29 of the Equality Act 2010 does not depend upon the discrimination being parasitic on another Article. If the policy is a provision, criterion or practice within the ambit of section 19 of that Act that is indirectly discriminatory against women then it falls foul of the Act unless it can be justified. Considering the terms of Section 19(1) and Chapter 5.6 of the Statutory Code of Practice, the policy amounts to such a provision. The circumstances are similar to those obtaining in R. (Winder and others) v. Sandwell Metropolitan Borough Council (ante) – see, in particular, paragraphs 86-91. As in that case, no or no sufficient evidence of justification exists.

In these circumstances, again I am satisfied that the policy amounts to a breach of section 29 of the Equality Act 2010 by being indirectly discriminatory.

By section 11(2) of the Children Act 2004 the Defendant is under an obligation to make arrangement to ensure their functions (in this case as a local housing authority) are discharged having regard to the need to safeguard and promote the welfare of children. In Nzolameso v. Westminster City Council (Secretary of State for Communities and Local Government and another intervening) [2015] UKSC 22 at paragraph 23 reference is made in the Court’s Judgment to the absence of a definition within the section of “welfare” but that “the welfareof the child has long been given a broad meaning in family proceedings, encompassing physical, psychological. Social, educational and economic welfare.” Further it was said at paragraph 24 “It has been held that section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case.”

The Defendant’s case is that there is no basis on which to presume that the interests of children were not taken into account as a primary consideration in the drawing of the relevant policies. However, there is nothing to show that the Defendant made arrangements to ensure that it discharged its functions having regard to the need to safeguard and promote the welfare of children either in terms of formulating the policy or, more particularly in applying it to the individual circumstances of the Claimant and her children in her case.

In this respect, I also find the policy to be unlawful.

Even if I am in error in relation to the lawfulness of the Defendant’s policy, I am satisfied that there was a failure to apply the allocations policy in the Claimant’s case. The terms of the decision letter of 8 December 2014, taken together with the absence of any evidence on behalf of the Defendant to the contrary, lead to the inescapable conclusion that no consideration was given to the Claimant’s circumstances that she did not fulfil the residence criteria. There is no indication or evidence that consideration was given to whether her case was exceptional, the discretionary provision relied upon by the Defendant. Accordingly, by failing to consider the applicability of the exceptionality provision, there was a failure to apply its own policy and for this discrete reason, the decision was unlawful.

I am satisfied, for the reasons set out, that the Defendant’s Housing Allocation Policy is unlawful and that, in any event, the Defendant’s decision in the Claimant’s case was unlawful and it is quashed.