Archive for March, 2008

Allocation and cumulative need

Published
by
NL
on 3 March 2008
in Housing law
. 2 Comments

Ahmad, R (on the application of) v London Borough of Newham [2008] EWCA Civ 140 was Newham’s appeal of a JR decision that its allocation scheme was unlawful for failing to take adequate account of cumulative need. This is going to be a long post. Allocation schemes are complex and the issues surrounding their legality detailed and difficult. The impact of an allocattion scheme affects thousands of people.

Despite length, there are some important points in the judgment that won’t make it into this post. The Judgment is well worth a careful read, in particular for its examination of the history of decisions on allocation and cumulative need.

The history is that Claimant sought a transfer from a housing association tenancy to a larger property in 1999. The household was given ‘overriding medical priority’. In 2002, Newham adopted a new allocation scheme. The Claimant’s priority was maintained for a short while under transitional provisions, then he ended up with a lesser priority under the new scheme, that of ‘reasonable preference’.

Newham’s new scheme was, at least in part, a choice based letting scheme, with a reasonable preference band in which bidding took place - this was for anyone with a reasonable preference under s.167, and also for tenants seeking transfers - some 5% of the total.

Of higher priority was the band for those qualifying for direct offers. This latter band included `additional preference` (aka emergency rehousing) and `multiple needs` (introduced later after a Judicial Review was settled). The criteria for emergency housing were very rigorous. Multiple need was said to include those with more than one need falling under s.167 Housing Act 1996 (see below).

However, the actual entry criteria were considerably narrower than those of s.167. An applicant had to score three points. One point was scored if statutorily overcrowded or subject to environmental health abatement action (compare to s.167(2)(c) “insanitary or overcrowded housing or otherwise unsatisfactory housing condition”); if more than one member of the household had medical grounds for ‘reasonable preference, Newham’s scheme provided that one point was scored for each additional member of the household, but no points for the first member of the household - who had the ‘reasonable preference’ in the first band.

Housing Act 1996 s.167 provides:

“(1) Every local housing authority shall have a scheme (their ‘allocation scheme’) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.

For this purpose ‘procedure’ includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken.

(1A) The scheme shall include a statement of the authority’s policy on offering people who are to be allocated housing accommodation –

(a) a choice of housing accommodation; or

(b) the opportunity to express preferences about the housing accommodation to be allocated to them.

(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to –

(a) people who are homeless (within the meaning of Part 7);

(b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);

(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;

(d) people who need to move on medical or welfare grounds (including grounds relating to a disability); and

(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or others).

The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of people with urgent housing needs).

(2A) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2); and the factors which the scheme may allow to be taken into account include –

(a) the financial resources available to a person to meet his housing costs;

(b) any behaviour of a person (or a member of his household) which affects his suitability to be a tenant;

(c) any local connection (within the meaning of section 199) which exists between a person and the authority’s district.

The challenge at Judicial Review was on four grounds:

The claim that the Applicant’s household had not been properly assessed for medical grounds - a fresh assessment and review was in play, so this was not at issue in the appeal.

i) the scheme did not take proper account of cumulative or composite need;

ii) the scheme did not reconcile need and choice in a rational manner;

iii) the criteria applied were insufficiently precise.

The applicant succeeded at JR on i) only. The deputy judge found that  firstly, the according of same priority to tenants seeking a transfer, not entitled to a s.167 preference, meant that reasonable preference was not accorded. R(A) v Lambeth; R(Lindsay) v Lambeth [2002] EWCA Civ 1084 applied. Secondly, cumulative need was not adequately addressed, as the three points, and the additional conditions to get into ‘multiple needs’ was unsatisfactory.

Newham appealed and the applicant cross appealed on the remaining two grounds.

Newham’s grounds of appeal were that:

a)  the deputy judge had applied earlier case law too onerously with regard to the Authority’s discretion. There was no requirement for all instances of multiple need to be reflected in additional priority, Newham was entitled to decide on how to deal with such cases.

b) the chain of case law did not go as far as the deputy judge had relied upon. R v Islington ex p Reilly & Mannix (1998) 31 HLR 651; R v Westminster, ex p Al-Khorsan (1999) 33 HLR 77; the Lambeth case (as above); R (Cali, Abdi & Hassan) v Waltham Forest [2006] EWHC 302; could all be distinguished from the Newham scheme and in any case didn’t address the situation after the introduction of s.2A by the Homelessness Act 2002.

c) S.167(2A) gives the Authority a very broad discretion on how to adress s.167 priorities  within the scheme, even to the extent of not distinguishing priorities within or between the s.167(2) categories at all.

d) The transfer tenants are capped at 5%, so are treated differently, and Newham can allocate in this way if it doesn’t dominate the scheme.

The applicant maintained that the authorities are consistent and not affected by the introduction of 2A. The Guidance makes this clear. Something more is needed than the two band scheme as the direct offer critera do ot provide a rational means for identifying greatest need.

The Court of Appeal upheld the JR judgment. S.2A did not affect the established line of authorities and in any cas, 2A was solely concerned with additional factors that may be taken into account in determining priorities, and is not a licence to ignore the relative needs of those falling under s.167(2. The move to greater choice does not affect the requirement for the assessment of cumulative need. Lambeth upheld. Newham’s two band scheme did not have a sufficient mechanism to deal with composite need. Plus, that the transfer tenants had the same priority as the reasonable preference band meant that no ‘necessary head start’ was being given.

However, the appplicant’s other grounds in the cross appeal did not succeed.

Reconciling choice and need, to the extent that it was not covered in ground i), does not mean a legal requirement to give a choice to those currently allocated accommodation by direct offer. Government policy may favour that, but does not require it.

The criteria in the allocation scheme were sufficient. It is unnecessary to gloss or expand on the statutory criteria. it is sufficient that the factors taken into account in reaching a decision are spelled out in the decision.

I think there are more allocation case judgments due shortly, at least at Judicial Review, so this is probably  going to be a continuing series.

Considering suspension of possession for ASB

Published
by
NL
on 2 March 2008
in Housing law
. 0 Comments

London Borough of Lambeth v Debrah [2007] EWCA Civ 1503 was an application for permission to appeal a Circuit Judge judgment giving an order for possession, which was not suspended or stayed. The appeal wasnot against the order, but the refusal to suspend. The case was an ASB possession order. There had been serious problems with permitting drugs to be taken at the premises, and a closure order had been made but said aside on appeal. A manslaughter had been committed by someone in the area using drugs, and there was some evidence that culprit may have used drugs at the premises. There were many complaints by neighbours. The appellant had given an undertaking on no possession or allowing possession of drugs on the premises in April 2007, which had not been breached.

The first order judge did not suspend the possession order on finding that there had been serious breaches about which the Defendant had not been frank, and there was not sufficient - in the way of a keyworker’s statement or the like - to be confident of future behaviour.

The first order judge noted the requirement of s.85A Housing Act 1985 that he had to consider the effect of the nuisance on others and the continuing effect the nuisance is likely to have. In doing this he addressed the stabbing that had occurred in the area of the flat, in the context of neighbours fears about future incidents.

Ground 1 of the appeal was that the judge had relied improperly on the manslaughter, without evidence to a connection. The Court held:

The judge makes it clear that it is the repetition of events to which he is drawing attention, those being events which can reasonably cause great anxiety and concern and put at risk residents. That was the only linkage that he was making.

Ground  2 was that a) the judge had failed to give due weight to there being no further allegations since April 2007, and b) that the judge had taken s.85A into account when considering a stay, where s.85A applies to the making of the possession order.

The Court held that, while s.85A applies to the making of the order, in considering a stay, the judge’s discretion under s.85(2) is unfettered. However, the Court of Appeal held in Manchester City Council v Higgins [2005] EWCA Civ 1423 that it should be exercised with particular reference to the future. Additionally, because s.85A considerations only apply to the making of the possession order under statute, does not mean that the same considerations are thereby ruled out of considering a stay.

As for the issues of weight, the decision was not one that the judge could not reasonably come to in the proper exercise of his discretion and the applicant was not submitting that the decision was perverse.

Permission refused.

Housing for children

Published
by
NL
on 2 March 2008
in Housing law
. 2 Comments

A couple of recent cases concerning local authorities’ duties under s.20 Childrens Act 1989

R (On The Application of M) (Fc) V London Borough of Hammersmith and Fulham Appellate Committee [2008] UKHL 14 concerns the varied responsibilities of Social Services and Housing depts. The duties under s.20 Childrens Act towards 16 - 18 year olds are more extensive than those under Housing Act 1996 homelessness provisions. In this case, the 17 year old presented to the housing dept. and was, eventually given temporary accommodation. What the House of Lords found ought to have happened was that, given that there was at least a question of her being a ‘child in need’, she should have been referred for a social services assessment, in line with Guidance. She wasn’t - instead being dealt with wholly by Housing.

Could this be taken to be being looked after under s.20 Childrens Act for the purposes of the continuing care and support under s.23C Childrens Act? This support is only available to those over 18 who have been in care or are a ‘relevant child’ by reason of s.20 care and accommodation having been given.

Baroness Hale says no. Although there are Court of Appeal precedents for taking a local authority’s accommodation of a child as s.20 accommodation, whatever the authority said it was doing, these all only applied to other accommodation by social services departments (Southwark London Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181; H v Wandsworth London Borough Council [2007] EWHC 1082 (Admin), (2007) 10 CCLR 441; R (S) v Sutton London Borough Council [2007] EWCA Civ 790; and R (L) v Nottinghamshire County Council [2007] EWHC 2364 (Admin).).

What had happened here was a legitimate accommodation of the child under HA 1996, s.188., which could not be deemed to be Childrens Act accommodation, as it was neither unlawful nor a deliberate attempt to avoid a s.20 duty.

Moreover, it is only in unitary authorities that a social service dept and a housing dept are part of the same authority. Elsewhere, a District Council deals with housing and would refer to the County Council social services. One could not hold that these were the same authority, and the situation should not be different between unitary and non-unitary authorities. At para 44:

44.  [...] It is one thing to hold that the actions of a local children’s services authority should be categorised according to what they should have done rather than what they may have thought, whether at the time or in retrospect, that they were doing. It is another thing entirely to hold that the actions of a local housing authority should be categorised according to what the children’s services authority should have done had the case been drawn to their attention at the time. In all of the above cases, the children’s services authority did something as a result of which the child was provided with accommodation. The question was what they had done. In this case, there is no evidence that the children’s services authority did anything at all. It is impossible to read the words ‘a child who is…provided with accommodation by the authority in the exercise of any functions…which are social services functions within the meaning of the Local Authority Social Services Act 1970…’ to include a child who has not been drawn to the attention of the local social services authority or provided with any accommodation or other services by that authority. Once again, had this been a non-metropolitan authority, the housing authority could not have provided accommodation under section 20 and the social services authority could not have provided interim accommodation under section 188. The position cannot be different as between the unitary and the non-unitary authorities.

Whilst on the Childrens Act 1989,  G, R (on the application of) v London Borough of Southwark [2007] EWCA Civ 1506  - permission given to appeal the Judicial Review on the issue of how far a social services assessment is a finding of fact capable of giving rise to a s.20 duty. In this case the Authority does not formally accept the assessment and maintains that only a limited duty under the Housing Act - to assist in finding accommodation - is engaged.

The full hearing should have taken place by now, so the judgment is hopefully imminent.

Worth noting that the Court was prepared to accept an undertaking to accommodate pending trial, without prejudice, by the local authority. The Court was not willing to make an interim order to accommodate, for reasons based apparently on a lack of co-operation from the applicant.