Nearly Legal

Now, personally, I intend to chuck my kids out as soon as possible and return to “normal”.  But, for Mrs Ariemuguvbe, this was not possible because her children were subject to immigration status and had no recourse to public funds (no doubt, they didn’t want to leave either).  The issue for the Court of Appeal in Ariemuguvbe v Islington LBC (for our discussion of the High Court decision, see here) was whether Islington should allocate Mrs Ariemuguvbe, her husband, her five children (aged 22, 24, 27, 29, 31) and three grandchildren (aged 11 months, 1 and 2) an appropriately sized property.  They are currently living in a three bedroomed property managed by a housing association.  Put another way, what was Mrs Ariemuguvbe’s household for the purposes of Islington’s allocation scheme.  Islington’s policy was a rather old-fashioned beast – a points-based scheme devised in 2007 – which required Islington to take into account the needs of all individuals in the applicant’s household. But they had refused to take account of the adult children because they were adult and had no recourse to public funds (and, if allocated accommodation by Islington, they would have had recourse to public funds).

There were two broad issues considered by the Court.  First, was the immigration status of the children irrelevant for the purposes of Part VI, given that the children were not at risk of imminent removal?  Second, could the children be considered to be part of Mrs Ariemuguvbe’s household?  The Court of Appeal (Smith LJ giving the leading judgment) held against Mrs Ariemuguvbe on both points.

As regards the first point, Counsel for Mrs Ariemuguvbe relied on the judgment of Collins J in R(Kimvono) v Tower Hamlets LBC [2001] 33 HLR 239 at [23], where it was suggested that the applicant’s children’s immigration status was irrelevant for the purposes of the performance of Part VI duties and could not be taken into account.  That proposition was effectively trumped by Terry Gallivan, Counsel for Islington, who relied on the contrary proposition in Akinbolu v Hackney LBC (1997) 29 HLR 259, 269 as well as that old chestnut R v Sec of State for the Environment  ex p Tower Hamlets LBC [1993] QB 632, 643, neither of which had been cited to Collins J.  In Akinbolu, the CA had said:

The application of the policy by a housing authority to refuse to provide public sector housing to applicants who are illegal immigrants or overstayers could not be said to be outside the proper exercise of its powers under Part II (see by way of analogy Eastleigh BC v Betts [1983] 2 AC 613). In the present case the immigration status of the appellant might well have caused this housing authority, with knowledge of the facts, not to offer the appellant a tenancy.

The Court of Appeal here limited Collins J’s judgment in Kimvono to its facts and made clear that Collins J would not have made the point that he did had the Akinbolu and Tower Hamlets cases been cited to him.  Although Parliament had subsequently amended the immigration provisions of Part VI, what the amendment did was to cordon off those areas where there was no discretion and identify the areas where the Act provides very broad discretion: “Thus the respondent was entitled to take into account the fact that the appellant’s five adult children would not be entitled, if they had applied for accommodation in their own right, to be provided with accommodation by the respondent” (at [22]).

On the second issue, the Court made a number of important points about the way allocations schemes should be read and also the type of information they should contain.  On the former, “… since this is a local authority housing allocation scheme and not an enactment, it has to be read in a practical, common sense, and not in a legalistic way” (at [24])(having just argued to the contrary myself, that puts me in a spot of bother, but there we go).  Schemes should not be read rigidly and this one did not say that points would be awarded for every individual in the household.  It did not follow that the adult children, even if they were part of their mother’s household, had a need to live in the same accommodation as their mother.  Furthermore:

Turning secondly to the legal status of the scheme, since it is only a local authority’s housing allocation scheme and does not purport to be a comprehensive statement of the general law, it does not have to state the obvious: that is to say that the needs of all individuals in an applicant’s household will be taken into account by the respondent only insofar as it would be lawful and/or not contrary to wider public policy considerations for the respondent to meet those needs. If meeting a need of a particular individual would result in an unlawful recourse to public funds, then a local housing authority is entitled — even if it is not bound — to say that that need will not, as a matter of discretion, be taken into account when points are being awarded. ([26])

These points were repeated by Lord Neuberger MR in his short judgment (at [31]).  Now, we know from Lin and others that schemes do need to give the principles on which allocations and prioritisation are based, but when are these “obvious” and, I suppose, “not obvious”.  As NL and I noted, in relation to R (Van Boolen) v London Borough of Barking & Dagenham [2009] EWHC 2196 (Admin) (links to NL’s note), there is a bubbling issue about the extent to which allocations policies need to set out all their terms; it’d be interesting to note whether this issue was canvassed before the CA in this case (hint, hint).

The children were able to lead independent lives and should have been able to make their own housing arrangements  (although those independent lives and housing arrangements were rather dependent on their immigration status).  As Smith LJ put it, subsequent event made clear they were able to lead independent lives as “… both of the adult sons have left the property, one being returned to Nigeria, the other to live in his own home with his new wife” ([29]).  Hmm.

In R(M) v Hackney LBC [2009] EWHC 2255 (Admin), Cranston J was faced with a difficult case which “… raises the issue of reconciling individual rights with the rights of the community”. The rights concerned were the Claimant’s rights to an allocation of a property which was suitable for him, but unlikely to be so for the community. Rather more mundanely, it demonstrates the difficulty of challenging a local authority decision to regard an applicant as ineligible when the applicant has “… been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority” under section 160A(7)-(8).

The evidence was that the Claimant was a “grooming paedophile” who, although 84 years old with a significant disability and significant needs, happened to have become worse with age (which M disputed). In 2004, a sexual offences prevention order had been made against him after allegations had been made in relation to his conduct with a 15 year old boy (without going into any detail, there was a bit of urination – a fact relevant below). He had a string of convictions for sexual offences going back to 1942. In 2006, M achieved priority on the council’s waiting list for a ground floor property and was offered one. He informed the Special Needs Housing Manager about the 2004 order for confirmation that he could accept the offer, as the flat was near a children’s playground. This information set a whole train of meetings and decisions in progress, quite properly, including a MAPPA meeting, the deliberations of which were confidential and not disclosed to M at any stage. His transfer application was removed from the system “because of the greater need to protect the public (principally children)”. He appealed. The council sent a “minded to” letter saying that they did not believe that M was at risk due to the inadequacy of his home – he had carers who met his reasonable needs to leave the property – and he was a grooming paedophile. So, if he had more accessible accommodation, this would increase the risks to children in the vicinity. The council confirmed that decision subsequently making clear that although it had failed to provide evidence as to its refusal to rehouse M, that did not mean there was no evidence (quite the contrary).

In one sense, the problem here lay with mapping the “risk-based” approach of MAPPA onto an allocations scheme (an interesting risk v need dichotomy). That was the first submission of counsel for M, that the council had not considered its criteria (which was emphasised by the composition of the MAPPA panel); secondly, it was argued that M had no opportunity to respond to the MAPPA findings because they had not been disclosed to him; and third, it was argued that M’s behaviour was not of a character where an outright possession order would have been made, particularly as some of the activities complained about were explicable by reference to M’s medical problems (there were urology issues, hence, M argued, the urination).

Cranston J dismissed the first two submissions on the facts – it was clear that the council were considering their allocations criteria by reference to the decision it made and the right of appeal (s 167(4A)) given to M; there was no procedural unfairness because “However opaque to outsiders the correspondence might have been, it would have been obvious to the Claimant the reasons for the Council’s decision” ([35]). On the third point, it will be remembered that Dixon v LB Wandsworth (No 1) [2007] EWHC 3075 (Admin) demonstrated how difficult such a decision would be to challenge. Dixon was not cited here but the conclusion was similar; indeed probably this was a clearer case than Dixon. The council took the view that the 2004 incidents would have enabled them to obtain an outright order particularly bearing in mind the background factors that the council has to make sure that its properties are properly managed and kept free from undesirable activity (citing Sandwell MBC v Hensley [2007] EWCA Civ 1425 at [25] Gage LJ). Further, the administrative and judicial functions “should not be elided … the message to me is clear: it is not for me to allocate Hackney’s housing” (Cranston J at [36], citing Otton LJ in Bristol CC v Mousah (1998) 30 HLR 32, at 40 [although take your pick of cases really] ). The Council was entitled to place weight on M’s conduct in 2004 leading to the order which was a serious matter; the council’s concerns were not fanciful; and the decision was therefore not perverse. The council had said that its stance in this case was “exceptional”, with which Cranston J agreed.