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By Dave
18/09/2009

Allocations: Risk v Need

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.

Posted in: Allocation

4 Comments

  1. kris

    This was an interesting case – which I don’t suppose any judge wants to touch with a barge-pole.

    My understanding is the applicant is an elderly housebound man who cannot negotiate stairs without his carers’ assistance. The argument was this left him effectively imprisoned in his own flat. hence the transfer request.

    His other point was any injunctions or orders had expired – thus raising the point about dangerousness. he says he’s done his time – on the other hand, are we as a community willing to take the risk of him being rehoused and him taking the opportunity to re-offend?

    I think the judge probably made the best decision in the circumstances – but whether it was the correct decision in law may be another matter.

    Reply
  2. simply wondered

    if the facts as related by kris are accurate (stairs / unable to navigate) then isn’t the accommodation unsuitable? i would regard a decision made by a council that his having a flat that he can’t actually get out of is justified by minimising the risk he poses to children as being so far out as to be wednesbury squared! LA’s have yet to acquire the power of house arrest.

    Reply
    • dave

      Points taken, both. But the council were assisting him with access/egress from the property with carers and made certain undertakings in that regard. The point was that, on the ground floor, he would be free to come and go as he chose and thus a risk. As Cranston J noted at [38], “It has undertaken to provide the community care services which meet the claimant’s needs in his existing property, so as to mitigate the hardship for him of its housing decision. Putting aside the legal considerations, I would expect it to meet that undertaking.” An interesting case, though.

      Reply
  3. simply wondered

    but it ain’t for the la to make any decision on whether he should be free to come and go as he chooses. that for me would constitute an interference with his art5 right.

    Reply

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