Osman, R (on the application of) v London Borough of Harrow

The Claimant applies for judicial review of the decision of the Defendant on 23 March 2016 to award the Claimant Band C priority for the purposes of the allocation of housing accommodation. The award was made in accordance with the Defendant’s amended housing scheme (the Amended Scheme) under Part VI of the Housing Act 1996 (the 1996 Act). The Claimant contends that the scheme as amended was unlawful, as is its application to the Claimant, on the grounds that it unlawfully discriminated against those in the private rented sector including the Claimant and her family by denying equivalent priority to those in the public sector contrary to articles 8 and 14 of the European Convention on Human Rights (ECHR). Accordingly the Amended Scheme did not secure that a reasonable preference was given to persons occupying overcrowded housing or otherwise living in unsatisfactory housing conditions including the Claimant and her family contrary to section 166A(3) of the 1996 Act.

The Claimant was unemployed and lived with her husband and four children aged 1-6 years old in privately rented accommodation in Harrow. The accommodation was a single bedroomed flat and was therefore seriously overcrowded. The Claimant’s eldest child had a severe skin condition and allergy, which were exacerbated by the housing conditions.

On 22^nd December 2013 the Claimant was placed in priority Band A under the Defendant’s then housing scheme (the Original Scheme). On 1^st December 2015 she was informed by the Defendant that her priority had been reassessed in accordance with the Amended Scheme with the result that her priority was now reduced to Band C and that ‘given the lack of available social housing it is unlikely that you will get an offer through Locata in the near future.’ Locata was the web-based system used by the Defendant for the allocation of its social housing. The Claimant sought a review of the reassessment, but by letter dated 23^rd March 2016 the decision was confirmed. The consequence is that it would be unlikely that the Claimant would receive an offer of suitable accommodation, at least not for the foreseeable future. The review letter included an offer open until 8^th June 2016 of one month’s rent and deposit to secure a property in the private rented sector.

The Claimant explained in her witness statement that, although the Defendant had offered her financial support towards rent in advance and a deposit for larger accommodation in the private rented sector, she had been unable to find such accommodation because private landlords would not let to tenants on housing benefit.

Part VI of the 1996 Act provides so far as is relevant:

‘159 Allocation of housing accommodation.

(1)

A local housing authority shall comply with the provisions of this Part in allocating housing accommodation….

(7)

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

Section 160 provides for cases where the provisions of Part VI for allocation do not apply including assignment of secure tenancies under section 92 of the Housing 1985 (the 1985 Act).

By the Children Act 2004 section 11:

‘1) This section applies to each of the following–

(a)

a local authority in England;…

(2)

Each person and body to whom this section applies must make arrangements for ensuring that–

(a)

their functions are discharged having regard to the need to safeguard and promote the welfare of children; and

(b)

any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.’

The ECHR includes:

‘Article 8

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others….

Article 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

In R (Ahmad) v Newham LBC [2009] UKHL 14; [2009] 3 All ER 755 Lady Hale commented on the right to housing allocation at paragraph 12:

‘Secondly, the relief claimed is important because no one suggests that Mr Ahmad has a right to a house. At most, he has a right to have his application for a house properly considered in accordance with a lawful allocation policy. Part VI of the 1996 Act gives no one a right to a house. This is not surprising as local housing authorities have no general duty to provide housing accommodation. They have a duty periodically to review housing needs in their area: Housing Act 1985, section 8. They have power to provide housing accommodation by building or acquiring it: 1985 Act, section 9. They also have power to nominate prospective tenants to registered social landlords or to others. They are required to have an allocation policy which applies to selecting tenants for their own housing or nominating people for housing held by others: Housing Act 1996, section 159(2). But this does not mean that they have to have available any particular quantity of housing accommodation, still less that they must have enough of it to meet the demand, even from people in the “reasonable preference” groups identified in section 167(2). In some areas there may be an over-supply of council and social housing. In others there may be a severe under-supply. Newham is one of those others.’

At paragraph 46 Lord Neuberger noted:

‘Fifthly, as a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies. Of course, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, it seems unlikely that the legislature can have intended that judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge.’

In R (Woolfe) v Islington LBC [2016] EWHC 1907 (Admin); [2016] HLR 42 Holman J set out a helpful summary of the authorities on the approach to reasonable preference:

’17. Although s.166A was only recently added, the statutory expression “reasonable preference” in this context is not a new one. It is agreed between counsel and appears to be well established that the word “preference” must be read and understood in the sense of priority. There is now a considerable and still-growing body of authority in this field. An early case was R. v Wolverhampton MBC Ex p. Watters (1997) 29 H.L.R. 931. There, the claimant was in a category of person who was entitled to reasonable preference under the legislation then in force, but she had significant rent arrears which had the effect under the housing authority’s policy that she would not be admitted to their housing waiting list. It was argued on that claimant’s behalf that “… because Parliament have ordained that reasonable preference is to be given, a council cannot treat it as reasonable not to grant any preference. Otherwise [the then-relevant section] would be otiose.” (See in the judgment of Leggatt LJ at 935.)

18.

That argument is substantially the same as the argument of Mr Wise in the present case. Leggatt LJ, with whose judgment both other members of the court agreed, said at 936:

“If [the relevant section] simply required ‘preference’ to be given, [counsel’s] argument would be correct. But it does not: it requires ‘reasonable preference’. That envisages that other factors may weigh against … or even nullify the preference … No preference is to be given except reasonable preference. That involves balancing against the statutory factors such factors as may be relevant. So the council is entitled to take account of substantial arrears of rent due to the council … it follows that, when in the council’s judgment an applicant’s rent arrears are such as to outweigh the reasonable preference that would otherwise avail him, that applicant will not be selected.”

19.

Judge LJ, with whose judgment Potter LJ expressed agreement, said at 938:

“The statutory obligation … therefore requires that positive favour should be shown to applications which satisfy any of the relevant criteria. To use colloquial language they should be given a reasonable head start. Thereafter all the remaining factors fall to be considered in the balancing exercise inevitably required when each individual application is under consideration. If despite the head start the housing authority eventually decides on reasonable grounds that the application for a tenancy must be rejected this will not constitute a breach of the obligations imposed by [the section].”

20.

Watters clearly establishes that “other factors” may diminish or “even nullify the preference” after applying a balancing exercise, provided the applicant is first given “a reasonable head start”. In my view, however, there is a material distinction from the facts of the present case. In Watters, there were factors adverse to the applicant, viz. the rent arrears, which outweighed and “nullified” the head start. In the present case, the claimant is not in rent arrears and her application has no adverse or outweighing factors. All that can be said is that she has an absence of factors which would otherwise entitle her to more points.

21.

The expression “reasonable preference” was considered again by the Court of Appeal in R. (on the application of Lin) v Barnet [2007] EWCA Civ 132; [2007] H.L.R. 440. In that case (unlike the present case) the claimant, who was entitled to reasonable preference, had been entitled to bid, and had bid, for available properties but had not had enough points to be successful. The essential issue was the lawfulness of the respective number of points awarded to different categories of applicant, and whether the allocation scheme afforded reasonable preference to those entitled to it. Mr Wise submits that Lin v Barnet is distinguishable and simply not in point. The claimant in that case had not been prevented from bidding at all, whereas the present claimant has been. In that case, the essential challenge was to the numbers of points awarded to applicants with different attributes. In the present case, there is no challenge to the number of points awarded for the different attributes.

22.

On behalf of Islington, Mr Christopher Baker nevertheless relies strongly on what Dyson LJ, with whom the other members of the court agreed, said at [25] and [28]:

“25.

The test is not … whether the homeless are ‘excluded from allocation’. It is whether they are given ‘reasonable preference’ relative to persons who do not come within [the relevant section] … Compliance with [the section] does not depend on outcomes … Preference should not be confused with prospects of success. Prospects of success depend on many factors, of which the most material is the fact that the demand for accommodation greatly exceeds the supply. It is quite possible for a lawful scheme to give reasonable preference to a person within [the section] and for that person never to be allocated Part 6 housing …

28.

As to whether the preference is ‘reasonable’, it seems to me that this is a matter for the discretion of the council … ”’

In Wandsworth LBC v Michalak [2002] EWCA Civ 271; [2003] 1 WLR 617 Brooke LJ set out the approach to article 14 as follows:

’20. If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is “No”, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are as follows. (i) Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see section 1(1) of the Human Rights Act 1998)? (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison (“the chosen comparators”) on the other? (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved? The third test addresses the question whether the chosen comparators were in a sufficiently analogous situation to the complainant's situation for the different treatment to be relevant to the question whether the complainant's enjoyment of his Convention right has been free from article 14 discrimination.’

It was contended in Michalak that the claimant was not entitled to be treated less favourably under the Housing Act 1985 in respect of the succession to the secure tenancy under that Act than a person in a similar position with a tenancy protected under the Rent Act 1977. Brooke LJ rejected that approach in paragraph 35:

‘It appears to me, however, that even if it was open to us to hold that a person as distantly related as Mr Michalak was to Mr Lul would now be treated as a member of Mr Lul's family in a Rent Act context and therefore entitled to a successor tenancy - there are too many differences between the regimes for protected/statutory tenancies under the Rent Act 1977 and secure tenancies under the Housing Act 1985 for us to be satisfied that the chosen comparator was in a relevantly similar situation.’

The judge then went on to set out the differences, including those as to the provisions for assignment, succession, rent levels, terms of the tenancy, termination and the right to buy.

In Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 Lady Hale commented on the approach to these tests at paragraph 134:

‘The additional question is whether the difference in treatment is based on one or more of the grounds proscribed - whether expressly or by inference - in article 14. The appellant argued that that question should be asked after question (iv), the respondent that it should be asked after question (ii). In my view, the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided.’

A further qualification on the approach to article 14 case was made in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173, a case concerning alleged unlawful discrimination in respect of accrued pension rights. In that case Lord Hoffmann explained as follows:

‘15. Whether cases are sufficiently different is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that article 14 was also intended to be so limited. But the Strasbourg court has given it a wide interpretation, approaching that of the Fourteenth Amendment, and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification: Massachusetts Board of Retirement v Murgia (1976) 427 US 307.

16.

There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, e.g. that it is rational to prefer to employ men rather than women because more women than men give up employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (e g on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.’

I was referred to the decision of Goss J in R (HA) v Ealing BC [2015] EWHC 2375 (Admin); [2016] PTSR 16. That case concerned a residency requirement imposed under Part VI of the 1996 Act, which was said to contravene the requirement to provide reasonable preference under section 166A(3) and to involve discrimination contrary to article 14. On the facts of the scheme in that case it was held that the effect was totally to exclude those who did not satisfy the residency requirement so that there was no reasonable preference under section 166A(3) for those affected. Goss J considered the position in respect of article 14 and concluded:

’30. 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 (paras 4.13 (2012) and 19 (2013)) 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.

31.

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.’

I was also referred to the decision of Judge Waksman QC sitting as a deputy High Court judge in R (H) v Ealing LBC [2016] EWHC 841 (Admin); [2016] PTSR 1546. The case concerned a housing scheme which reserved 20% of the available lettings for working households and model council secure tenants. In respect of article 14 the judge held that non-council tenants were a status group and that article 8 was engaged in the circumstances of the case. At paragraph 90 he concluded on disparate treatment:

‘In addition, however, there is disparate treatment of non-council tenants because they cannot be model tenants by definition. Indeed this discrimination is direct for that reason.’

He considered justification on that basis from paragraph 100:

‘100. But, whichever test is the right one, I do not consider that the council has justified the scheme here. This is essentially for all the reasons given in relation to indirect discrimination under the 2010 Act. And in relation to the model tenants provision, if the aim is to encourage good behaviour and reward that by increased priority, it does not follow automatically that this should be applied to council tenants only. As a matter of principle, the other councils referred to above operated the additional priority to non-council tenants. That also answers the only other real point made by the council here, namely that it would be impossible to check on the conduct of any tenants other than council tenants because the former would not be under the direct control and knowledge of the council. But as the other councils' policies show, it is possible to devise a set of reasonably robust criteria which must be satisfied by all tenants.

101.

I appreciate, as Mr Hutchings points out, that the model tenant element of the scheme is narrow and specific because it deals only with transfers and not new lettings to those who may simply be in temporary accommodation. I also appreciate that with any transfer the property left behind will go into the general pool so the overall amount of housing stock is not reduced. But I do not accept these as answers to the challenge. The point remains that there is a class of well behaved tenant outside this group who cannot take advantage of the scheme and who are otherwise equally in need of better accommodation. And secondly, while other housing stock becomes available, almost by definition, it is likely to be significantly worse or smaller or less appropriate than that transferred to the moving tenants.

102.

Mr Hutchings submits that the court should be wary of intruding upon areas of allocation of scarce resources like housing and where there may be more than one way of achieving a legitimate aim. I agree that the mere fact of different approaches taken by other councils does not mean that, without more, the council is bound to follow them. But the point here is a simple evidential one and goes to the critical question of the least intrusive method and fair balance. On this question it would be absurd if the court did not have real regard to how other councils in more or less the same situation as Ealing have tackled the allocation challenges facing them where they have the same broad aims of incentivising tenants.

103.

In my view, it cannot be said that as against the aim of encouraging tenants to work and incentivising good tenant behaviour the scheme is the least intrusive method without unacceptable results or that a fair balance has been achieved.’

In respect of the duty under section 11 of the 2004 Act in Nzolomeso v Westminster City Council [2015] UKSC 22; [2015] 2 All ER 942 Lady Hale said:

‘27. The question of whether the accommodation offered is “suitable” for the applicant and each member of her household clearly requires the local authority to have regard to the need to safeguard and promote the welfare of any children in her household. Its suitability to meet their needs is a key component in its suitability generally. In my view, it is not enough for the decision-maker simply to ask whether any of the children are approaching GCSE or other externally assessed examinations. Disruption to their education and other support networks may be actively harmful to their social and educational development, but the authority also have to have regard to the need to promote, as well as to safeguard, their welfare. The decision-maker should identify the principal needs of the children, both individually and collectively, and have regard to the need to safeguard and promote them when making the decision.

28.

However, section 11 does not in terms require that the children's welfare should be the paramount or even a primary consideration. As the Joint Committee on Human Rights pointed out (19th Report of Session 2003-2004, Children Bill , HL Paper 161; HC 537, paras 69-77), it does not in terms reproduce the wording of article 3.1 of the United Nations Convention on the Rights of the Child (1989) (Cm 1976) (“UNCRC”):

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

…

30.

It is also the case that there will almost always be children affected by decisions about where to accommodate households to which the main homelessness duty is owed. Such households must, by definition, be in priority need, and most households are in priority need because they include minor children. The local authority may have the invidious task of choosing which household with children is to be offered a particular unit of accommodation. This does not absolve the authority from having regard to the need to safeguard and promote the welfare of each individual child in each individual household, but it does point towards the need to explain the choices made, preferably by reference to published policies setting out how this will be done ….’

On 11^th April 2013 the Defendant approved its housing scheme for the purposes of Part VI of the 1996 Act (the Original Scheme).

In paragraph 3.5 it explained that many people wished to move to council or housing association rented homes because they offered below market rents and were perceived as giving greater security than private rented homes. The paragraph continued:

‘However the supply of this type of housing is very limited. Each year we expect to rehouse around 400 households into public rented housing. Half of the vacancies are study and 1-bedroom flats, normally suitable only for single people and childless couples. Half of these units are reserved for older people. Yet at any one time we have around 5,000 households who have registered their interest in taking such a tenancy and over 1,200 new households applying to register each year. The overwhelming majority of applicants with an acknowledged need are families, for whom most of the available accommodation is unsuitable.’

At paragraph 3.8 figures were given for the supply of homes compared to demand, which showed that the numbers of households registered in the upper three priority bands for three bedroomed homes in comparison to the homes available was 13:1. At paragraph 3.9 the Scheme explained that most people who apply for housing within Harrow would never be offered a public sector tenancy, however long they waited. When the prospect of immediate rehousing was unrealistic, the Defendant advised people to seriously consider other options, especially private renting and/or moving away from West London.

In terms of the aims of the scheme paragraph 4.1 explained:

‘The Council aims (to) ensure that public rented housing goes to those with the most need as defined by local … standards, while reducing the budgetary impact of homelessness.’

Paragraph 4.2 continued:

‘The scheme reflects the Council’s ambition … to support and protect people who are most in need. It aims to give the highest priority to those who are less able to provide for their own housing needs than most of the population and therefore most in need of the Council’s help when their accommodation is unsuitable for their needs. We define unsuitable housing as accommodation that is:

•

Adversely affecting in a major way someone’s medical condition or disability;

•

Significantly detrimental to their welfare … or

•

Severely overcrowded.

The fact that a landlord is a private person charging a rent that is higher than a public sector rent does not make a home unsuitable.’

Paragraph 4.7 dealt with Equality and Fairness including:

‘Equality duties: the scheme is framed so as to give effect to the council’s Equality Act 2010 responsibility to eliminate unlawful discrimination on grounds of age, disability, race, religion, sex orientation, gender reassignment, marriage/civil partnership, pregnancy/maternity. Regular monitoring and adjustment of the scheme will take place to give effect to this duty. As far as possible it aims to advance equality of opportunity between people from different groups.

Treating tenants and homeseekers equally: The Localism Act allows the Council to allocate properties to council tenants outside the allocations scheme. Harrow, however, prefers to keep most lettings within the scheme to promote transparency, clarity and equality.’

Paragraph 21.5 dealt with overcrowding as follows:

‘Only where a household lacks two or more bedrooms as calculated by the bedroom standard set out in section 21.2 above will they qualify for reasonable preference with Harrow. This is because in the prevailing housing conditions in Harrow many people lack a bedroom without a need for public rented housing being indicated.’

On the relevant bedroom standard the Claimant’s household needed three bedrooms and therefore met the definition of severe overcrowding.

Section 6 explained how the scheme worked with the banding priorities and bidding on available properties through Locata. At paragraph 6.5 it dealt with ‘ensuring fairness for different groups’ including:

‘There are two main groups of people who apply for housing in Harrow:

•

An overwhelming 85% of applicants are people who do not currently have a public sector tenancy, referred to as ‘homeseekers’ (this includes homeless households)

•

The second group, referred to as ‘transfers’ comprises secure and flexible tenants of the council and those assured and flexible tenants of housing associations in the borough who decide to apply to the council rather than their own landlord for a move. Both kinds of transfer applicant together makes up only 15% of registered Locata members….

… targets are set from time to time for the proportion of homes to be allocated to the two main groups and regular monitoring takes place to ensure the targets are achieved, which is done, if necessary, by earmarking properties in the adverts for one group or another.’

Section 8 dealt with housing priorities in Harrow. It set out its statutory ‘reasonable preference’ priorities, including as group 3 those who ‘need to move because they are occupying unsanitary or overcrowded housing or are otherwise living in unsatisfactory conditions. Note: Harrow gives only those who lack more than one bedroom or are living unavoidably in severely unsatisfactory conditions reasonable preference for housing.’

Section 9 set out the bidding scheme with its four priority bands. Band A (the second priority band) was ‘urgent and high priority’ cases, which included ‘other (not-accepted homeless) homeseekers and transfers with an identified housing need to whom the council gives reasonable preference but who do not qualify for emergency Band A*’ including group 3.

Appendix 16 set out a chart of the priority bands and reasons. In Band A* were emergencies and transfer under-occupiers who would be willing to move to a smaller property. Guideline waiting times were given, including 6 months for 3 bed accommodation. Band A ‘Urgent and Priority’ cases included, as I have said, overcrowding and high priority hardship (group 3) for which the reason was given as:

•

‘Reasonable preference for housing will only be given where overcrowding is severe as defined in section 21.2. This is because in the prevailing housing conditions in Harrow many people lack a bedroom without a need for public rented housing being indicated

•

with dependent children and living in insecure accommodation with no bedroom and lacking or sharing amenities.’

The guideline waiting time indicated 2 years for 3 bed accommodation.

Band B applied to ‘Standard Priority’ cases, where the guideline waiting time for 3 bedroom accommodation was 5 years. Band C was ‘Non Urgent’ cases for which no guideline waiting times were given ‘as it is difficult to anticipate the frequency with which people in this category will be successful on Locata. This group will always be considered after other property bidders in bands A*, A and B.’

Paragraph 9.3(a) gave the service manager a residual discretion to increase the band of households:

‘whose defining features (including their multiple needs) are deemed to be so exceptional as to warrant a higher priority band than they would normally attract under the scheme. Such cases will be kept to a minimum and will usually entail some imminent threat, recent disaster or an exceptional need not anticipated or covered by the scheme. The assessment process is set out in appendix 5.’

Appendix 5 provided for the housing manager to consider a household living in unsatisfactory housing conditions to decide on the appropriate banding ‘with a view to ensuring that we give the greatest priority to those in the greatest need.’ The decision is subject to review at the request of the person affected as are other decisions under the scheme.

Paragraph 9.3(b) also provides the service manager a discretion where he considers that:

‘the defining features of a member of group A are so exceptionally severe as to warrant immediate/imminent rehousing to enable an offer of housing to be made outside the scheme.’

On 19^th November 2015 a report was presented to the Defendant’s cabinet, which recommended changes to the Original Scheme. These included no longer giving Band A priority to households who were overcrowded by more than one bedroom living in the private sector and including them in Band C. The reason for the change was summarised in the report as:

‘Stop offering high priority to overcrowded families who are home seekers. This has resulted in families remaining in overcrowded accommodation for many years believing this will facilitate an offer of social housing. Families in this situation can resolve their housing need far more rapidly by obtaining suitable alternative accommodation in the private rented sector.’

The report summarised the consultation which had taken place on the proposed changes, including the proposed change to home seeker overcrowding cases. It explained that as a result the proposed change was modified to put those cases into Band C as opposed to a proposed Band C-, as had been originally proposed. The report noted that the equality impact assessment had not identified any disproportionate impacts in that respect.

The report expanded on the reasons for the change to home seeker overcrowding cases in Appendix 1 paragraph 3 as follows:

‘All households who are overcrowded by 2 bedrooms or more are currently given band A on Locata. The proposal is to keep the existing policy unchanged for those living in permanent social housing but reduce banding to band C for those living in private sector accommodation, the same as homeless households. This is because those in private sector accommodation can meet their housing need by moving to alternative accommodation in the private sector, whereas those living in permanent social housing realistically do not have that option. The current scheme unfortunately leads to some families choosing to remain in overcrowded conditions when they could find alternative suitable private rented accommodation (or some adult family members could move out and establish their own household to alleviate the overcrowding).’

The recommended changes were approved on 22^nd October 2015 and the Amended Scheme came into effect on 1^st December 2015.

The text of the Amended Scheme remained essentially as in the Original Scheme as set out above subject to the approved changes. That included in the description of Band A in section 9.2 which as amended provided:

‘Transfers with an identified housing need to whom the council gives reasonable preference because they are occupying unsanitary or overcrowded housing or are otherwise living in unsatisfactory conditions (group 3) but who do not qualify for emergency band A+.’ (One of the changes approved was to change the title of Band A* to band A+.)

Band C now included:

‘Homeseekers with an identified housing need to whom the council gives reasonable preference because they are occupying unsanitary or overcrowded private rented housing or are otherwise living in unsatisfactory conditions in private rented accommodation (group 3).’

A new Band C- was introduced, which included:

‘Homeseekers with an identified housing need who qualify for statutory reasonable preference but who have not lived continuously in the borough of Harrow for the last five years.’

It also included cases where there had been a deliberate change in circumstances resulting in the worsening of the household’s circumstances.

The chart in Appendix 16 was changed to reflect the above. Band A now included: ‘overcrowding and high priority hardship (transfers only)(group 3)’ cases, but the reason remained unchanged. Band C included ‘overcrowding and high priority hardship (home seekers only)(group 3)’ cases, for which the reason given was the same as previously in Band A and retained for transfers in the Amended Scheme. No time limits were still given for Band C for the reasons given in the Original Scheme and it was stated that that group would always be considered after other property bidders in what was now Bands A+. A and B. Band C- was similarly notated, but that group was also to be considered after bidders in the four higher priority bands.

I have already referred to the Defendant’s letter dated 1^st December 2015, which informed the Claimant of her reassessment under the Amended Scheme as Band C with a bedroom need for 3 rooms and the confirmation of that reassessment on review under the scheme in its letter dated 23^rd March 2016. In justification of the revised banding this letter explained:

‘Part V (sic) of the (1996 Act) s 166A does not define what kind of tenancy should be given priority, only that reasonable preference should be given to families who fall into the prescribed categories. It goes on to say that each scheme may be framed to give addition (sic) preference to people who fall within those categories. We have a legal responsibility as social landlords towards our existing tenants and should not allow them to become overcrowded. It would be unreasonable for this council to tell its tenants who are living in overcrowded conditions to resolve their housing issue by securing accommodation in the private rented sector thus surrendering a secure tenancy. We have therefore given these families additional preference. Families living in the private sector can resolve their housing issues within their existing sector without a need for an allocation of social housing. It would be unfair to prioritise (the Claimant) over other applicants living in unsuitable housing. The changes in our policy brings overcrowding in line with other homeless applicants as defined by s 175(3) of the (1996 Act) …’

The letter also considered the personal circumstances of the Claimant and her family and concluded that Band C was the correct banding.

In his witness statement Paul Allen, the Defendant’s senior team manager in the Housing Needs team, explained that in 2013 as part of the Original Scheme the Defendant had amended the previous scheme:

‘to give greater priority to applicants from the private sector who were living in overcrowded conditions. They were to be included in Band A of the scheme along with existing council tenants who were in overcrowded premises. This increased priority was to run alongside the existing efforts made by Harrow to assist through the homelessness procedure as it was not considered that such applicants had somewhere that it would be reasonable for them to reside in and were therefore homeless.’

He went on to explain:

‘2. Sometimes there can be unintended consequences when attempts are made to improve a situation for applicants and it became apparent that applicants were not coming forward to be assisted with suitable accommodation though the homelessness route. This meant that children were remaining in overcrowded accommodation far longer than they needed to be and that many applicants were declining properties offered under the homelessness procedure in the hope of obtaining a secure tenancy under the allocations policy. It seemed that applicants were prepared to wait in conditions that were unsatisfactory especially for their children. It had become a perverse incentive likely to cause harm to the families of applicants.

3.

The Policy is regularly reviewed and early in 2015 various amendments were being considered including the downgrading of applicants from the private sector in overcrowded conditions from Band A to band C. It was thought that this would encourage families with dependent children to move into suitable accommodation far more quickly through the homelessness procedure than had been the case when they were waiting for an offer through the allocations policy. It was thought that this would place such applicants in the same position as other homeless applicants.’

He described the consultation and the EIA processes, following which the report was presented to cabinet recommending the amendments to the Original Scheme as outlined earlier. As part of the consultation material which he produced was an overhead which reported that only about 1 in 20 properties available for private rent were within the local housing allowance levels and that the overall household benefit cap was to be reduced in August 2016 to £23,000 in London. It also explained as part of the reasons for the changes;

‘With recent announcements by the government we think the supply of social housing in Harrow is going to reduce even further over the next few years so the policy needs to reflect the limited options there are for offering social housing to homeseekers. The lack of affordable housing and impact of the ongoing welfare reforms mean that some households will need to move out of Harrow and/or out of London. This is more likely to affect larger families and those not in settled employment.’

The consultation material went onto to note in respect of the revised allocation policy:

‘While the policy outlines our approach to applicants in different circumstances which are more likely to affect specific age groups, such as key stages of education and health needs, every application will be considered on a case by case basis in order to address any specific exceptional circumstances.’

It also reported that analysis of the current applicants whose priority would be downgraded showed that 23 households would lose Band A priority as a result of the Amended Scheme.

In her witness statement the Claimant described her living conditions with the four children sharing the single bedroom and her husband and she sharing the living room. She described the difficulties which this caused including in particular her eldest daughter’s medical problems as well the effect generally on all the children’s well-being and health. She explained how in 2015 she had not been able to find a replacement rented property in the private sector because in each case the landlord was not willing to rent the property to persons in receipt of housing benefit.

As I have said, the basis for the challenge was article 14 of the ECHR and for that purpose the parties agreed that article 8 was engaged on the facts of the present case. In that light both counsel adopted the framework for consideration of article 14 set out by Brooke LJ in Michalak, to which I have referred above. It was further agreed that in this case private sector tenants would comprise an identifiable group separate from those in the public sector and that there had been a difference in treatment relevant to article 14 between the two groups.

Hence the two issues between the parties were:

Mr David Carter, who appears for the Claimant, submits that the position of transfer applicants is analogous to that of homeseekers in that both are dealt with under the Amended Scheme as applicants for an allocation for housing. Moreover under the Original Scheme both groups were dealt with as a single group without any distinction between transfers and homeseekers. Both are subject to same definition of need in terms of overcrowding under the Amended Scheme and for the purposes of the ‘reasonable preference’ required under section 166A of the 1996 Act. The only distinction is the form of tenure or more particularly landlord as between the public and private sectors. The difference in landlord does not make any difference as to whether the groups are analogous for this purpose.

He submits that the question should be addressed by the Court as a matter of fact in the particular context of the case to which the article 14 is to be applied. Hence the decision in Michalak can be distinguished on its facts. In that case the occupier was claiming a right to succession on the grounds that the statutory machinery for succession under the 1985 Act should be applied on the same basis as that which applied to protected and statutory tenancies under the 1977 Act. The Court concluded that these were two separate statutory regimes which contained a significant number of differences (see per Brooke LJ at paragraph 36). That was totally different from the present case where the 1996 Act applied to both groups equally, as did the scheme. The only question was their respective treatment within the statutory framework and under the scheme.

He submits that a more relevant decision in this respect was H. In that case the judge had not specifically addressed the four stages in Michalak, but he concluded that there was disparate treatment of non-council tenants because they could not meet the definition of model tenants under the scheme which only applied to council tenants (paragraph 90). In accepting non-council tenants as a relevant status group he necessarily accepted that the two forms of tenure were analogous for the purpose of their treatment under that scheme, notwithstanding the differences in security and otherwise between the two groups.

The determining issue is, he submits, not whether the two groups were analogous, which they plainly were, but whether the difference in treatment under the Amended Scheme can be justified. Accordingly the only real question is whether the defendant can justify its disparate treatment of the two analogous groups. For this purpose the difference in treatment must pursue a legitimate aim which has an objective and reasonable justification and is proportionate to the aim to be achieved. He submits that this is a question for the court, albeit giving deference to the determination of the responsible authority.

First, he submits that the motive behind the distinction as explained in the decision letter was that the Defendant had a ‘legal responsibility’ to their tenants and should not allow them to be overcrowded. In fact under the tenancy terms, as Mr McDermott who appears for the Defendant accepts, the obligation was on the tenant not to allow the premises to become overcrowded. Thus there should be no distinction between the Defendant’s responsibility in respect of transfers or homeseekers so far as preventing overcrowding is concerned. This reason for the distinction set out in the decision letter under challenge was flawed.

Second, he submits that the asserted justification that transfers would have to surrender their secure tenancy and move into private rented accommodation failed as an objective or reasonable justification because moving into the private rented sector was not the only way to address overcrowding. A common method was to make an exchange with another secure tenant, which is excluded from the Part VI allocation provisions.

Third, in any event the distinction did not effectively engage with the stated objective of supporting those who are most in need when the vast majority of those seeking allocation are in the private rented sector and the financial statistics show that private sector rents exceed the local housing allowance levels for the provision of benefit, which is in any event subject to reduction under the benefit cap.

Fourth, he submits that the particular circumstances of the Claimant in seeking alternative accommodation in the private sector where no landlord would accept a tenant on benefit is not addressed anywhere in the evidence or documentation produced by the Defendant.

Thus the evident objective to favour the council’s own tenants over the largest element of those subject to the same need was not justified on any objective basis. Moreover there was no actual evidence or research to back the suggestion that there may be some who did not follow up a homeless offer of alternative accommodation or delayed seeking alternative accommodation in the private rented sector. The feedback from consultation, such as it was, did not provide any support for the assertion. The direct evidence from the Claimant together with the overall financial evidence demonstrated that it was without proper foundation.

The response was in any event not proportionate in penalising the whole of the homeseeker section, particularly when regard is had to the interests of children living in these properties as will be likely with the overcrowding cases which are focused on larger family households. This is reinforced by the fact that in 2013 the Defendant took the view that the whole of the sector should receive equal priority for precisely the same reasons, as was plainly correct given that the effect of overcrowding was the same for transfers and home seekers. The reasons were unchanged in the Amended Scheme and the disparate treatment was in that respect wholly unjustified and without rational explanation. The inferred alternative of applying for reaccommodation on the ground of homelessness was not a real alternative because of the nature of the accommodation which may be provided, which could be short-term or indeed out of the Borough.

Mr McDermott submits that, applying the principles set out by Lady Hale in Ahmad and Holman J in Woolfe, it is plain that in this case the homeseeker group of which the Claimant was part was given preference under the scheme. The decision to modify the scheme was not taken arbitrarily but in the light of the advice from its officers based on monitoring the effects of the Original Scheme and following consultation. That was in the context an acknowledged and growing pressure on the housing stock, where demand greatly exceeded supply.

He points out that the proposed amendment was subject to consultation and based on the professional of advice of the officers who could be expected to have experience in and an understanding of housing conditions and the market in the area. The report to the cabinet set out specifically the nature of the change proposed in this respect and the reason for it. While the effect was to reduce the priority given to homeseekers subject to overcrowding, as a group they retained a priority preference depending on residency, which was equivalent to other homeless cases. He submits that it could not be said that there was no evidence for the Defendant to conclude that this was a reasonable preference within the scope of the scheme as a whole. The judgement for that decision under the Act was expressly for the Defendant to make. The scheme allowed for individual cases of hardship to be considered as to whether an exception should be made.

In respect of article 14 he submits that transfer cases were clearly not analogous to homeseeker cases within the context of housing allocation. The differences in tenure and security were fundamental and meant that the implications for priority and for other means of meeting the housing requirements of the household were different. The benefits of their existing tenure for transfer cases included rights of succession, lower rents, the right to buy, rights to take in lodgers, management consultation rights and much stronger security of tenure. What was a realistically available option for homeseekers to find more suitable accommodation in the private rented sector did not reasonably apply to transfers, who could not realistically be expected to forego their security as tenants in the public sector. The position was indistinguishable in principle from the differences in the terms of tenure considered in Michalak and the same approach should be applied here.

He goes on to submit that, even if it is concluded that the groups are analogous for the purposes of article 14, there is a clear and objective justification for the difference in priority preference under the Amended Scheme. This is not a case which engaged the rights of the individual in the first class considered by Lord Hoffmann in Carson as part of the ‘Enlightenment’. This was in the second class about the general public interest, which was, as he put it, ‘very much a matter for the democratically elected branches of government.’

It is correct that there was no contractual obligation of the council to its secured tenants to avoid over-occupancy, but he submits that that was not relevant to the central consideration in making the amendment to the scheme. As referred to above, the additional security and benefits that transfer tenants enjoyed as part of their existing tenure meant that it was not realistic to expect those tenants to opt for larger housing in the private rented sector, thereby surrendering their existing tenure benefits. This was the motivating consideration in the decision to treat the two groups differently, that was that on the advice of the officers the homeseekers had a realistic option of meeting their requirements in the private rented sector, which was an option not realistically open to transfers.

It is accepted that exchanges do occur in the transfer sector and that ability would remain. It had not been suggested that seeking accommodation in the private rented sector was the only option for transfers. In any event in terms of the allocation of scarce housing resource there is a difference in terms of the ‘perverse’ incentive to those in the private sector seeking to achieve the benefits of a secure tenancy for the first time, which would not apply to transfers who already enjoyed that status.

So far as the effect on children is concerned, he submits that, in the absence of an increase in the supply of social housing which was not in prospect, the only option for the Defendant to reduce the effects on children through overcrowding was to reduce the incentive for households to continue in overcrowded conditions. On the evidence one way to achieve this was through reducing the relative priority preference for homeseekers so that overcrowding was at a same priority level as other homeless cases so that they would be encouraged to seek reaccommodation in the private rented sector, which on the advice of officers was a realistic alternative for that group. That was a rational and proportionate basis for the distinction made between the two groups.

The report to cabinet specifically had regard to the effect on families, which would have included children, as explained by Mr Allen in his witness statement. The consultation had also included the Children’s Social Services. He submits that there is therefore no evidence of any breach of section 11 of the 2004 Act, which, as explained by Lady Hale in Nzolameso, simply requires that regard is had to children’s welfare, not that it is to be treated as a paramount consideration. In contrast to the position in H and HA, in this case the proposed amendments had been the subject of extensive consultation and were specifically intended to reduce overcrowding in family housing, which would have included children by removing the perverse incentive.

In terms of proportionality the opportunity for the consideration of individual cases and review is material, as is the offer in this particular case of financial support.

This case seems to me one where the issue as to whether for the purposes of article 14 the transfer group was analogous to the homeseeker group is closely linked to the question whether the distinction was proportionate and justified to meet the objective and whether that objective was legitimate. In this respect the comments of Lady Hale on avoiding a rigidly formulaic approach in Ghaidan v Godin-Mendoza are apposite.

While the scheme and its application was about housing allocation and therefore concerned people’s homes and housing needs, the decision was one that did not directly depend on an individual’s characteristics but fell into Lord Hoffmann’s second group of general public interest matters. Thus in my judgement considerable weight is to be given to the decision of the Defendant as housing authority in making decisions which Parliament has entrusted to it. That is reinforced in this case where the Defendant had the benefit of the advice of its officers, who could have been expected to be experienced in the relevant housing conditions and how the housing market and allocation and other matters operated, as Mr Allen explains in his witness statement. The extent of the excess of demand over supply for public sector housing was explained in the Scheme, both in terms of the overall figures and for the different sizes of accommodation, including in particular the shortfall of larger dwellings.

As to whether the two tenure groups were analogous for the purposes of article 14, I consider that for the purposes of the present scheme there is a relevant comparison to be made between the transfer and homeseeker groups in that arbitrary discrimination between the two so as to affect their article 8 rights would in principle come within article 14. However, that is not to put to one side the significant differences in tenure between the two groups as set out above. In my judgement the Defendant was fully entitled to take those into account in considering the practical effects of the scheme in the allocation of housing and the best use of its housing resource to achieve its objectives including the reduction in overcrowding.

The differences as to tenure and security between the transfer and homeseeker groups are not in dispute and are on any view significant in terms of the willingness or realism of moving from one group to another. As Mr Allen explains in his witness statement, it had become apparent that applicants were not coming forward to be assisted with overcrowding through the homelessness route, which meant that children were remaining in overcrowded conditions for longer than they need, because applicants were declining properties in the hope of obtaining a secure tenancy under the Original Scheme. The intention was that by reducing the priority preference to the same as homeless cases the incentive to decline offers through that route would be removed. There is no evidence before the court to challenge that advice or its basis as reported by the officers. Moreover that was in my judgement a legitimate aim for the purposes of article 14 and otherwise.

The reasons for the change were set out in the consultation material in question 3, including the perverse incentive and the option for homeseekers to look for alternative accommodation in the private sector, while transfers would have to give up their existing tenure security and other benefits. The report to cabinet was clear as to the recommended basis for this change, including that the Original Scheme led to some families choosing to remain in overcrowded conditions and that the change would reduce the homeseeker priority preference to the same as that of homeless households. The difference with transfer households was explained that, while home seekers could meet their housing need by moving to alternative accommodation in the private rented sector, transfers did not realistically have that option.

In my judgement it is plain that the decision to amend this scheme was driven by the objective of making the best use of what was an increasingly scarce housing resource and not arbitrarily to favour the Defendant’s own tenants over those in the private sector. On the advice of the officers the result would or should be a relative overall reduction in over-occupancy, albeit that only 23 households were directly affected by the change in priority banding. The question then arises whether any discriminatory effects on the homeseeker group or other consequence was unjustified or disproportionate.

In that respect I do not accept that the Defendant was acting on the basis of any misdirection as to its legal responsibilities. The reasons for the Amended Scheme were set out in cabinet report and explained by Mr Allen. In my judgement it was not part of that reasoning that the Defendant was under a contractual obligation to avoid overcrowding in its tenanted properties. In so far as the letter dated 23^rd March 2016 asserted that the Defendant had a ‘legal responsibility’ as social landlords towards the Defendant’s existing tenants and should not allow them to be overcrowded, I do not consider that that should be substituted for the actual reasons, the subject of the advice to the Defendant in the cabinet report and on which it can be properly assumed that it took the decision to amend the scheme. In my judgement the letter does not support a conclusion that the amendment was driven by a desire in some way to favour transfers over homeseekers as opposed to seeking to meet the perverse incentive for the reasons set out above.

In my judgement there is nothing on the relevant material that supports the contention that the Defendant failed to have regard to the option of exchange as part of the normal operation of social tenancy allocation and occupation. The point was not exchange of one secure tenancy for another but the unreality of transfers relocating into the private sector where they would lose their security. It can be noted that the negative response recorded in the consultation feedback was in fact from a public sector tenant who had relocated into the private rented sector and felt disadvantaged on that basis.

As to the personal circumstances of the Claimant and her family, these were put before the Defendant in the letter dated 27^th January 2016 seeking a review as well as challenging the lawfulness of the scheme. That review was considered in the letter dated 23^rd March 2016, to which I have referred above, and confirmed the first decision. No challenge has been made specifically to that review other than in so far as it was based on the lawfulness of the Amended Scheme, which is said to have been contrary to articles 8 and 14 and as such did not provide a reasonable preference for homeseekers in severely overcrowded conditions such as the Claimant. In any event the difficulties in obtaining a private sector tenancy as a person in receipt of benefits which the Claimant says that she experienced in 2015 were not included in the matters put forward to support review in the letter dated 27^th January 2016. Moreover that evidence is unparticularised and there is no evidence that it was representative of the private rental market generally. If it had been put forward to the Defendant as part of the review, it could have been material to the consideration whether an exception should be made in the Claimant’s case. However I am not persuaded that in itself it would support a conclusion that the justification for the amendment and its objective was ill-founded or that it was not proportionate for the purposes of article 14 or otherwise.

I do not consider that the Defendant failed to carry out sufficient research or analysis to support the amendment. What was required to support the decision was for the Defendant to determine, so long as it did so rationally and in accordance with law. As I have said, in this case they had the advice of their officers in light of the operation of the Original Scheme which had operated for two years and had itself been an amendment of the previous priority banding. It had been subject to consultation. The advice from the officers was reasoned and in my judgement there has been nothing to demonstrate that at the time or since that advice was flawed or unsound. In any event the scheme allowed for exceptions to be made in individual cases.

For the reasons set out above I do not accept that the objective was to penalise or disadvantage private sector tenants. In my judgement the evidence establishes unequivocally that the objective was to support the reduction in overcrowding by removing the perverse incentive on the basis of the officers’ advice. That was a legitimate objective which was properly the subject of the Defendant’s determination of the appropriate scheme for the purposes of Part VI of the 1996 Act. The means of securing that objective has not been shown on the evidence advanced in this case to be ill-founded or to have consequences that would be manifestly unfair or otherwise disproportionate so as to render the scheme contrary to article 14 and unlawful. It continued to provide a preference to those in overcrowded conditions in the private sector. The difference with transfers was for the reasons set out above justified as the appropriate means to meet the objective and make the best use of the scarce housing resources to meet the objective of reducing overcrowding including in households with children. Any consequent reduction in priority for private sector tenants, while forming the large majority of cases, was proportionate to meeting that objective and as such justified. It was properly a matter for the decision of the Defendant having regard to what it saw as achieving the best use of their housing resource acting rationally on the evidence before it. In my judgement there is nothing to sustain the contention that in doing so they acted in breach of article 14 or otherwise unlawfully.

It follows from the above that the preference given to the Claimant’s group in the scheme banding was in my judgment a reasonable preference for the purposes of section 166A(3) of the 1996 Act. For all the above reasons the application for judicial review is refused.