28/01/2014

Impossible Preference: Excluding the homeless from housing lists

R (Jakimaviciute) v LB Hammersmith and Fulham [2013] EWHC 4372 (Admin) [Not generally available yet. I’ve seen a transcript]

This judicial review permission hearing raises very significant issues for post Localism Act Council allocation policies. The central issue is the Council’s ability under the Act to set an allocation policy that includes ‘qualifying classes’ and excludes other classes. Housing Act 1996 (as amended by Localism Act) s.160ZA states:

[…]
(7) Subject to subsections (2) and (4) and any regulations under subsection (8), a local housing authority may decide what classes of persons are, or are not, qualifying persons.
[…]

Meanwhile s.166A(3) provides:

As regards priorities, the scheme shall, subject to subsection (4), 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 any 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 to others).

 

The scheme may also be framed so as to give additional preference to particular descriptions of [people within one or more of paragraphs (a) to (e)] (being descriptions of people with urgent housing needs).

Now, H&F’s allocation scheme set out ‘classes of persons who will not normally qualify for registration to participate in the allocation scheme’. These classes include, at paragraph 2.14 (d):

“Homeless applicants placed in long term suitable temporary accommodation under the main homelessness duty, unless the property does not meet the needs of the household or is about to be ended through no fault of the applicant ….. “

Ms J, the Claimant, fell into this class, having been placed in a private sector short hold tenancy as temporary accommodation after H&F accepted the full homeless duty. H&F refused to add her to the housing list. Ms J brought a judicial review claim alleging unlawfulness as she was not being given a reasonable preference as a homeless person – s.166A(3).

Before D Gill, sitting as a Deputy High Court Judge, the renewed oral application for permission did not go well.

9. Mr Chataway [for Ms J] submitted that if the discretion provided for at Section 160ZA (7) is as wide as contended by the defendant, that would mean that it would be open to any local authority to exclude anybody to whom they would otherwise have an obligation to give a reasonable preference. That submission in fact emphasises the fact that the intention was to give the local authority a wide discretion to decide, in the light of the housing shortages and the demand for properties, how to go about discharging their duty. There is nothing arguably irrational in the public law sense in that concept, although I make the point, for the record, that it has not been said on the claimant’s behalf that the defendant’s allocation scheme is irrational.

 

10. When one steps back and looks at how these relevant provisions are organised, it is clear, it seems to me, that Section 160ZA sets out the provisions which confer on the local authority the duty and power to decide who are qualifying persons. Section 166A sets out the principles to be followed in setting up the allocation schemes, in particular the priorities to be given amongst the qualifying persons.

 

11. Since this key issue is determinative of this renewed application for permission and I have decided that it is unarguable, I do not need to go on to consider the other arguments. So permission is refused.

What was decided then, is that the reasonable preference ‘priority’ only applies to people who are on the list. And as Ms J was in a class excluded from the list, she didn’t even get to the point where reasonable preference was an issue.

I understand that permission to appeal to the Court of Appeal has been filed.

Comment

Yes, you have got that right. If this decision was correct, then it would be entirely possible for a Council to exclude any and all homeless applicants, whatever duty was owed, from the Part 6 housing allocation list. The fact that a reasonable preference is to be accorded to a homeless person in the meaning of Part 7 is neither here nor there, as they would never get to the point where issues of priority within the list would apply.

It is not just H&F, other councils have pulled similar wheezes on excluding some homeless, whether intentionally homeless or in ‘secure temporary accommodation’ (something of an oxymoron). Barnet is one (and apparently H&F thanked Barnet for their assistance in devising H&F’s allocation policy. Given that Barnet’s published allocation policy appears to believe that Barnet is in Wales, one would have thought any borrowings should be carefully considered).

But, the decision is far from unproblematic. For example, the “Allocation of accommodation: guidance for local housing authorities in England” published by DCLG to accompany the Localism Act amendments coming into force contained the following, under ‘Qualifying’:

3.20 In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in s.166A(3) to give overall priority for an allocation to people in the reasonable preference categories.

 

3.21 Housing authorities should avoid setting criteria which disqualify groups of people whose members are likely to be accorded reasonable preference for social housing, for example on medical or welfare grounds. However, authorities may wish to adopt criteria which would disqualify individuals who satisfy the reasonable preference requirements. This could be the case, for example, if applicants are disqualified on a ground of anti- social behaviour.

The difficulty here is that the Guidance both acknowledges that there is a potential power to exclude ‘reasonable preference’ people from the housing list as a non-qualifying class, even while stating that Councils should avoid doing so. The question, then, is how far H&F (and Barnet et al) could be said to have had regard to the Guidance in formulating their schemes and non-qualifying categories.

Oh brave new world. It will be very interesting (not to say very important) to see how this or a similar case goes on appeal (or JR if permission given on appeal).

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.

23 Comments

  1. JS

    The error is to read these sections separately and not together . The Q.P criteria enables local authorities to exclude those to whom a reasonable preference should be granted if there is a good reason why they should not be eligible for social housing e.g ASB , poor tenancy history etc. It completely defeats the statutory purpose of giving those who are Q.Ps reasonable preference to disqualify them on grounds that they have reasonable preference . The judge has failed to consider the scheme as a whole, ignored the purposes for which social housing is available and to be allocated – Parliament has given a wider discretion post Localism Act but retained reasonable preference as a clear indicator to whom priority should be given although they can be disqualified it cannot be on the basis that parliament believes they should have priority so we can use the Q.P power to defeat the statutory purpose – that is an abuse of power and a policy adopted for an improper purpose !

    Reply
    • Geoff

      ‘The Q.P criteria enables local authorities to exclude those to whom a reasonable preference should be granted if there is a good reason why they should not be eligible for social housing e.g ASB , poor tenancy history etc’ – I dont think thast the case, for example the Dec DCLG guidance suggests that people should be considered as not qualifying if they have less than two years residence in an area. Nothing to do with suitability to be a tenant, just disqualifying a whole class of people (no doubt including many homeless people or those in a RP group). H&F are also not disqualifying all homeless people, just those who in effect are in no different a situation than the thousands of others in the Borough in the private rented sector. In terms of ‘fairness’, I see no reason why someone should have a higher prioirty living an an AST just because they obtained it through presenting as homeless, rather than finding such accommodation on their own?

    • Giles

      Geoff, a small error there. They are being treated worse than someone else in an AST. The non homeless tenant may well be a qualifying person. The homeless person is not. Any justification for that?

      Also, what of those found intentionally homeless? Barnet excludes them from qualifying, regardless of their housing situation.

    • Geoff

      Yes, but each of those families in an AST provided by H&F will have the choice of taking a ‘normal’ AST to bring their homeless duty to an end and apply for rehousing through Part 6 as anyone else. Seems a fair and reasonable approach to me to stop people using Part 7 as a (relatively) short cut to social ahead of others in similar situations. I’m sure others will disagree!

      The decision in this case seems logical whatever your view of whether its fair though 1) a local authority can decide who qualifies, then 2) there are some groups of qualifying people they need to give reasonable preference to.
      All homeless people are not being made non-qualifying, just those in ASTs towards whom a homeless duty still exists(which presumably by definition must be suitable accommodation and objectively are not currently in a ‘homeless situation’ per se? ). Surely thats localism for you and for each authority to make its decision with the Courts only intervening in exceptional situations?

  2. PM

    For my sins, I was working at Barnet when their Allocations Policy was first changed in about 2010 (and believe me, they were dark dark days). It could be a bit of a nightmare to work with and I’m surprised there hasn’t been a major challenge to it previously.

    It was written by everyone’s favourite homelessness consultant, Andy Gale. Wouldn’t be surprised if he had some involvement in H&F’s one too…

    Reply
    • Giles Peaker

      It is Barnet’s new, 2013, version I’m referring to. Produced after the Localism Act.

    • PM

      I realise you’re referring to their 2013 version, but having looked through the new version (admittedly very quicker), it looks very much like it’s based on the previous one. Certainly the Banding System (which I think is the relevant part in this discussion) doesn’t appear to have changed at all.

    • Giles Peaker

      No the relevant part if the new criteria for qualification for the list. This is a post Localism Act thing. And drastic in Barnet’s case.

  3. JS

    Geoff – that is not the point a residence requirement is another reason not related to their reasonable preference – i.e a reason why those resident in the borough should have priority not the fact of their entitlement to reasonable preference .

    If this decision is correct then a LA could lawfully exclude those living in insanitary or overcrowded conditions simply because that related only to priority not Q.P status .

    Reply
    • Geoff

      But its the guidance, rather than the legislation which would make that distinction. And H&F could quite reasonably say that given the housing pressures in their Borough removing from their housing register those in fairly settled accommodation was a reasonable approach – even when having had regard to the guidance? Think if they disqualified a whole reasonable preference group you would have a point, but its just a sub-section and with a rationale for it.

  4. JS

    That does not assist them – the challenge is to lawfulness rather than rationality but as Giles points out what is the difference between a homeless person in an AST and another person . Indeed, it could suggest a further improper purpose in seeking to dissuade homeless applications from those entitled to assistance

    Reply
  5. Martin Coates

    It is not just homeless applicants housed in private rented accommodation who are excluded from the register (and denied their expected reasonable reference). It is homeless applicants who have been placed in long term temporary accommdation under the homeless duty of s.193, and that will include any accommodation – such as a non-secure tenancy in council stock.
    So is the policy drafted to dissuade people from making homeless applications to the LA? I think that it is. A homeless family who does not make a homeless application (and stays sofa surfing) will get on the register (as long as they are not excluded by any of the numerous other exclusion criteria – see page 8 within their policy); but a homeless family that does hinder the local authority by making a homeless application can be placed in long-term temporary accommodation (even outside of the area) but will be excluded from the register, even though they are still classed as homeless under the s.193 duty.
    Does that seem right?

    Reply
  6. S

    I don’t see why, under the legislation, an authority can’t do this. The law says they can exclude classes of people; it doesn’t say they can’t exclude people with a reasonable preference.

    However, surely the question is one of rationality? How can it be rational to exclude a whole class of person to whom Parliament intended to be given a reasonable preference? The guidance also points against doing so.

    Reply
  7. frednach

    [Housing Allocations: Overall preference must mean an integral overall composite assessment.

    We forward our petition on housing allocations in general, in particular the single categorisation of preference, which invariably has been found wanting in failing to show that overall allocations are let to those within statutory preference groups as prescribed and intended by the framers for the very simple reason, that the instigators fail to complete and demonstrate that an overall composite needs assessment has been completed, more so to those protected characteristic groups (EA 2010, see Mazani v Italy 1999 Article 8 Right to Home) thereby resultant in exclusion from social housing . The very same framers whom seek to allocate housing to those in preference groups and tackle inequality through social mobility are the very same authorities seen to exclude preference and undermine equality through a lack of composite assessment in breach of their social and statutory obligations (see also Allocation of accommodation; guidance for local housing authorities in England para 3.22), not so much as social mobility but mobility of social ill, at best social engineering at worst social cleansing through single exclusion.

    Reply
  8. frednach

    Thank you for your reply dated 13/2/14. As you are aware we do not seek to misrepresent or misquote the judgement in Ahmed V Newham simply represent the context of allocations in social housing in ensuring social mobility and equality. Accordingly, we make the following observations.

    First, you have still not explained nor answered our central question as to how an under occupier is placed is Top Band A as a ‘compelling/ urgent case of serious overriding need’ to that of an emergency medical needs applicant? We note that in 2013, 80 lettings have been selected to that group in contrast to 54 medical; therefore you have not demonstrated that overall reasonable preference has been afforded to those entitled to statutory Rf as opposed to those w/o Rf in so far as Band A is concerned.

    Second, as you are aware by virtue of section 159 (4A) as amended by the Localism Act 2011 makes clear that existing secure or RSL assured tenants seeking a transfer are now outside the main allocations scheme (Part 6) which must override a code of guidance.

    Third, the EA 2010 as outlined makes plain when making decisions of a strategic nature about how to exercise its functions, a public body must have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage, section 1.

    More so since the above steps involved in meeting the needs of disabled persons does not sufficiently distinguish or identify varying needs by single categorisation that are different from the needs of persons who are not disabled as per s149 (4).

    In short, an authority must be careful not to offend anti-discrimination legislation by discriminating against protected groups directly or indirectly, thus applying a provision that puts that group at a particular disadvantage when compared to those without, that provision cannot to be said to be shown to be proportionate means of achieving a legitimate aim.

    *Thlimmenos decision is a significant recognition that where a state applies ‘sanctions’ (akin to DDA or EA ‘condition’, ‘criterion’ etc) against people in materially different situations this amounts to indirect discrimination, thus a failure to ‘treat’ differently persons whose situations are significantly different amounts to a prohibited ID. For the simple reason that like cases must be treated alike, unlike cases differently, that is the axiom of rational behaviour- Lord Hoffman. A failure to account for idiosyncratic or uncommon circumstance of an applicant by single blanket categorisation is a failure of a public sector equality duty by virtue of ignoring relevant evidence and making relevant enquiries (Pieretti v LB Enfield); treating all applicants in a single categorisation irrespective of composite needs is nothing short of Wednesday unreasonable by exclusion of individual respective needs.

    Four, are you aware of decision in R (Jakimaviciute) v LB Hammersmith and Fulham [2013] EWHC 4372 (Admin) and the following, the “Allocation of accommodation: guidance for local housing authorities in England” published by DCLG to accompany the Localism Act amendments coming into force contained the following, under ‘Qualifying’:

    3.20 In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in s.166A(3) to give overall priority for an allocation to people in the reasonable preference categories.
    To emphasise the above point by seeking to exclude and disqualify applicants with statutory composite needs you are more likely than not to fall foul of the above legislation not least as a failure to show overall that Rf is afforded to those over non- Rf groups, for example in band A under occupier (80) is given overriding preference to emergency medical (54), as that of Decant group with 146 letting compared to 13 with Social hardship.
    We note also that you have failed to explain as to how and when discretion is applied to those with statutory composite needs; again by virtue of failing to apply discretion through additional preference is akin to fettering discretion.
    Lastly, we go back to J Collins remarks and make an indictment for all the above reasons with ‘a realisation that what would otherwise be regarded as substandard policy in subordinating needs can be the only way of avoiding an unacceptably long wait, is hardly what most would regard as prioritising needs less any real choice’ or as LJ Pill summed up precisely “I fail to see how permitting an applicant to assess his need so highly that he accepts inferior accommodation amounts to conferring a preference on him. The two concepts are different and the right to choose does not amount to a preference within the meaning of the section. This conclusion is not dependent on the fact that the choice is available to all applicants, and not only had those entitled to the statutory preference, but is consistent with it” anything else is demeaning.

    Reply
  9. mourada

    Some interesting posts there; although, imo, failed to include the primordial limb of when the main duty was initially owed; 9 November 2012 is key.

    This applies to applicants who are considered to be homeless under the terms of part VII of the Housing Act 1996, as amended. The Council has a legal duty to secure temporary accommodation for households who are eligible, unintentionally homeless and in priority need. However, the Localism Act 2011 provides that the Council has the power to end any homeless duty in the privately rented sector with a
    12 month suitable fixed tenancy for applicants that are approved as homeless after 9 November 2012. Once a suitable offer of privately rented accommodation has been made the full homeless duty will end (be discharged) as will the applicant’s statutory reasonable preference status under this policy.

    Reply
    • Giles Peaker

      No, it isn’t key. If duty is discharged by private sector accommodation, post Localism Act, then being homeless under Part VII and the ‘reasonable preference’ to be accorded don’t apply.

    • mourada

      The Localism Act gives authorities the power to end the main homelessness duty with an offer of private rented accommodation,
      Without a homeless duty, the reasonable preference does not apply. see guidance chapter 4.

    • Martin Coates

      You’re missing the point… the exclusion from the register in Hammersmith (and other London authorities) is if the homeless applicant has been given the full duty under s.193 and placed in long-term temporary accommodation -not necessarily private rented accommodation, it can be a non-secure tenancy with the council.
      If the homeless applicant has had the s.193 duty ended by an offer of private rented accommodation – a 12 month asured shorthold – then they are no longer homeless and if you look at the exclusions within Hammersmith’s allocation policy (page 8), such a person might then be eligible for register as long as they are not excluded by any other criteria (no local connection etc).
      The exclusion critieria is applied to anyone audacious enough to make a homeless application and is then placed in long-term temporary accommodation. Any homeless person who stays sofa surfing will not be excluded by this criteria and anyone who is adequately housed in the borough in private rented acommodation is also not excluded under the criteria.
      And the logic for this exclusion critieria is?….
      A cynic would say that it might dissuade persons from making a homeless application. Maybe somebody from Hammersmith Housing department can post the reason why this exclusion criteria applies?

    • mourada

      Once accommodation has been provided section 193 comes to an end, which is the case here. The Localism Act has given excessive power to local Authorities to exclude at will. The wrongdoer is the Localism Act itself not the Local Authorities, if any.

    • mourada

      Once suitable accommodation has been provided,

    • Martin Coates

      You’re still not getting what the actual exclusion from the register is..
      The exclusion is where Hammersmith are ‘performing’ the duty under s.193 – placing them in long-term temporary accommodation under s.193(2) – not where they are ‘ending’ the duty with a private rented offer under s.193 (7AA).
      Look at the exclusion criteria on page 8 of their published allocation policy – it is that contentious exclusion D that is being challenged.

  10. Giles Peaker

    Now overturned by Court of Appeal. Report to follow

    Reply

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