The question of the interaction between housing debt and prioritisation for an allocation under Part VI, Housing Act 1996, appears to have been in issue in R(Osei) v Newham LBC Lettings Agency, decided on 27.01.10. I say “appears to” because, as of yet, no transcript is available – summaries appear on Lawtel and Lexis – and I for one would be grateful of sight of the full transcript (hint hint to Alison Meacher/Hereward & Foster [who acted for Ms Osei] and Lindsay Johnson/Newham [for Newham]). Essentially, the question was whether it was appropriate for Newham’s choice-based lettings agency to decide that Ms Osei’s rent arrears were sufficient to reduce her priority when bidding for properties. Ms Osei appears to have had a terrible time of it. She was a victim of domestic violence and applied for an out-of-borough transfer with her two children (she was also pregnant). Her application was supported by a variety of agencies (the LA’s domestic violence team, their ASB team, and a child protection plan also supported her application for an urgent need for re-housing). Newham’s lettings agency initially accepted her application but only subject to her clearing her former tenancy rent arrears (which would, on any view, have been unlawful unless Newham found her to be ineligible). They subsequently issued a decision-letter which said that Ms Osei was entitled to emergency re-housing; but, given the number of households entitled to such priority, Ms Osei’s rent arrears were such that she would rank with a lower priority so that it was unlikely she would be made an offer of accommodation; the lettings agency was not minded to exercise its discretion to rehouse her.
Ms Osei argued (a) that the local authority had fettered its discretion by making the issue of the rent arrears the absolute priority consideration without regard to her personal circumstances and the danger she was in; and (b) the lettingss agency failed to give adequate reasons. It should be said that Newham also put in a supporting witness statement.
Lord Carlile QC, sitting as a Deputy Judge, held that Ms Osei’s circumstances had been taken into account and the agency had been satisfied that Ms Osei’s case was not such an exceptional one as to enable her debt to be disregarded. Certain of the correspondence had not been “felicitously phrased, and suggested a restrictive approach by the agency to debt” but, applying Holmes-Moorhouse (presumably Lord Neuberger’s judgment in relation to section 202/204 decision letters, discussed in NL’s post on that case), such letters were not to be read as statutory provisions and the decision-letter clearly set out Ms Osei’s domestic situation as well as the regard had to that situation. On the inadequate reasons point, it was held that there is no particular form for the giving of reasons “… and having regard to the knowledge that [Ms Osei] and her solicitors could be taken to have had it was clear that sufficient reasons had been given for the agency’s decisions” (applying R(M) v Hackney LBC [2009] EWHC 2255 – links to our note, see [35] of the judgment).
There’s a lot going on here that requires some background information – hence the need for a transcript!
It was given extempore so there will not be a transcript for a while.
Briefly, the decision maker in his reasoning, having decided to reduce the claimant’s priority under the scheme, did not mention her personal circumstances, i.e. the fact she had suffered domestic violence. So the question was whether in reaching a decision whether to apply Newham’s rent arrears policy (to reduce priority under the scheme if a rent related debt was owing) had in fact had regard to them. The following argument being that if the decision maker had not then he was applying a blanket policy and as such it was unlawful.
The crucial context to this case was that to get an emergency transfer under Newham’s allocation scheme you have to be in a pretty dire situation; it is not easy to get into that group. If having decided that she qualified for an emergency transfer under the scheme, it must follow that the decision maker had been aware of the claimant’s circumstances; if he hadn’t she would not have been entitled to emergency priority. Accordingly it could not be said that he did not have regard to them when he considered the next question of whether he should disapply the policy on reducing priority because of rent arrears.
Another important piece of background information is that the claimant had made next to no payments towards clearing the arrears and had reneged on a previous agreement. There was an indication that if she could have shown that she had kept to the agreement and was gradually reducing the arrears the decision to reduce priority may have been different.