Not round these parts

R(Carney) v Bolton-at-Home Limited [2012] EWHC 2553 (Admin)

Did historic ASB by the daughter of a former evicted tenant allow the local authority to refuse to allow her accommodation in the same area? This was the issue in this judicial review of Bolton-at-Home’s (‘Bolton’) decision to refuse a property to Ms Carney.

Ms C was on the housing list for Bolton (the now owner of Bolton MC’s housing stock) and when she was 21, was made a provisional offer for a house in an area of Bolton ‘subject to a verification process’. Bolton then removed the offer, their letter to Ms C stating:

“[having] carried out a verification check [the claimant had been identified as being] guilty of unacceptable behaviour…
Details identified during verification deemed this area not suitable due to serious ASB [short for antisocial behaviour] incidents which led to your family being evicted in April 2009.
You have the right to request a review of this decision, which must be requested in writing… within 28 days…”

Ms C’s solicitors requested a review, which elicited a negative decision, clarifying that Ms C was not being taken off the register, but that the offer in that specific area of Bolton was withdrawn and no offers in that area would be made:

“The offer of accommodation …was withdrawn because of your client’s involvement in an antisocial behaviour case that led Bolton at Home to successfully obtain an eviction notice at [the previous property].”

A further review was offered and again Ms C’s solicitors made representations. A further negative review decision was made:

“In the case of your client I can confirm that a history of poor behaviour was identified and that this behaviour was linked to the area in which the allocation was refused. For this reason Mr McKean felt the allocation was not appropriate.

I uphold that decision. I do not find that an allocation to Ms Carney in this location to be suitable. I would, however, consider an allocation to Ms Carney in a different location and would urge her to express interest in properties in different locations.”

Ms C then proceeded to issue her judicial review.  The challenge was on three grounds (one further not pursued):

1. The decision had taken into account irrelevant factors and not taken into account relevant factors

2. A challenge to Bolton’s allocation policy, paragraph 8.2.6. Para 8 provided that

“In exceptional circumstances the defendant may withdraw an offer of accommodation, for example… [...] and para 8.2.6, as the Court described it, meant that para 8:

may be used to bypass a customer who is at the top of the shortlist if the letting would result in a customer previously evicted for antisocial behaviour being rehoused in the same area as the behaviour took place, even if the customer is now suitable to be re-housed

In the Policy Statement that accompanied the Allocation Policy, Bolton stated:

“Bolton at Home considers a minimum 12 month period where there is no evidence to suggest poor behaviour to be satisfactory.”
“However, this timescale may be extended should the previous behaviour have formed part of a regular pattern, ie where every 14 months an incident occurred. In these instances a housing manager can legitimately request a longer period in which an applicant must demonstrate good conduct to have occurred prior to allocation of a property.”

3. The decision not to offer Ms C a property in the specific area was irrational on the facts of the case.

On 1. Ms C argued that Bolton had failed to consider Ms C’s behaviour separately from that of her family, and that Bolton had failed to consider that she was under 18 at the time and was now over 18 and a mother. This went nowhere, the Court finding that on the evidence Bolton’s officers had had regard to these facts.

On 2. the most substantial area of challenge, Ms C argued that clause 8.2.6 should not be taken as applying, as she had not previously been a Bolton tenant and it was her mother who had been evicted from a property in the area. The Court did not accept this, agreeing with Bolton that:

on the wording of the clause itself and if necessary by adopting a purposive approach to the construction of that clause that requirement is met, first because the claimant is a customer in the sense that she is has made an application for housing to the defendant, which is the definition of a customer in the policy, and, second because she has previously, as determined by the defendant, accepted by her mother and not challenged by her, committed antisocial behaviour, and, third that in ordinary language she has been evicted as a result of that behaviour, in the sense that she was part of the whole family who were all evicted as a result of antisocial behaviour, even though the eviction order could only have been made against her mother as the tenant.

Ms C also argued that clause 8.2.6 should be read in conjunction with the policy statement, in particular the ‘evidencing conduct’ statement, arguing “this is clearly not a case where the claimant has been guilty of poor behaviour within the 12-month period immediately before the application was made by her; and, secondly, that there is no previous regular pattern of poor behaviour where a longer period could legitimately be requested”.

Bolton argued that this part of the policy statement applied to whether people should be accepted on to the housing list at all, not to limitations on specific offers under clause 8.2.6, but in any event “the evidence in this case shows that the claimant had been guilty of a regular pattern of previous poor behaviour such as would justify an extended period”.

The Court accepted Bolton’s argument both on the operation of the policy statement and on the pattern of previous poor behaviour.

The third ground, of irrationality failed on a similar basis. Bolton were entitled to consider the previous poor behaviour in making a decision on the offer in that specific area.

The reality, in my judgment, is that the claimant had been guilty of serious antisocial behaviour; it is not behaviour which can be disregarded as being merely historic; it is clear that the defendant gave serious consideration to her previous antisocial behaviour. It was entitled to have regard not just to the claimant’s own personal interests and circumstances but also to the interests and circumstances of the other residents, because the claimant’s behaviour had affected their interests. It was also entitled to have regard to its own interests, in creating sustainable communities. Having regard to all of those circumstances, I am quite satisfied that the defendant was entitled to reach the decision which it did.

On that previous behaviour, the Court had considered the details of the possession proceedings against Ms C’s mother:

Although the majority did not refer to this claimant as opposed to other members of her family, there were general allegations of antisocial behaviour made against the children who lived at the property, without specifying whether or not that included the claimant, and there were also fourteen specified allegations which did relate to the claimant, ten of which, it appears, were admitted by the claimant’s mother at the hearing, relating to events occurring between 2005 and 2007. It is not necessary to refer to the detail of those allegations; the most serious ones are summarised both by Mr McKean and by Ms Parlby in their evidence. Mr McKean in particular, who as Neighbourhood Safety Officer has knowledge of these matters, says that: the claimant’s behaviour had occurred over a number of years; it was relentless, despite warnings given by the defendants to her and her family to curb her behaviour; it was violent, thus admitted allegations included allegations of stone-throwing and the theft of a bicycle from a young boy with threats of violence; and many residents in the area were relocated due to living in fear of the actions of the claimant and her family, with one resident having had lit plastic pushed through her letterbox.

The claim for judicial review was dismissed.

Posted in ASB, FLW case note, Housing law - All, secure-tenancy and tagged , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

One Comment

  1. Bill Heywood
    Posted 22/10/2012 at 10:35 am | link to comment

    Two things spring to mind:
    1) What a common sense decision to support the landlord’s perfectly reasonable actions
    2) How did this case get this far and who agreed to fund it?

    It is very hard work and expensive to obtain possession in ASB cases and it makes a mockery of the process if the perpetrators are then rehoused back in the same community. It is also be grossly unfair and demoralising to the victims.

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