Wherever I lay my hat… Residence tests for allocation policies

HA, R (On the Application Of) v London Borough of Ealing [2015] EWHC 2375 (Admin)

This is, I think, a very significant case for all Councils who have or are considering setting residence requirements in their allocation policies.

Like quite a few councils, certainly in London, LB Ealing changed its allocation policies for Part VI accommodation after the introduction of the Localism Act 2012 and, specifically, it introduced a ‘residence requirement’ – specifically, Ealing’s policy said that “Households that have not been resident in the Borough for the last 5 years” were not eligible for entry onto the housing register. They did not qualify for the housing list at all. There were some small exceptions to this, which we will come to later.

Ms HA “is a mother of 5 children aged 17, 15, 10, 9 and 6 years respectively at the date of the decision. They are victims of domestic violence. Together with the children, she left the London Borough of Hounslow to escape further domestic violence in February 2014.” Ealing had accepted the full homeless duty under Part VII in June 2014, but so far had not found suitable temporary or permanent accommodation. Ms HA applied to join the housing register for Part VI accommodation in December 2014. Within 4 days she received a ‘pro forma’ rejection, which read:

“Following changes to the Allocation Scheme, you do not appear to be currently eligible to join the Housing Register at this time. The changes include:

Households will not be able to register for housing in future unless they are able to demonstrate that they have been resident in the borough for five years.

Your online application has been removed.”

Ms HA brought a claim for judicial review. The grounds were:
A. The policy is contrary to the statutory scheme provided for by Part VI of the Housing Act 1996 (as amended) by establishing an absolute exclusion from the housing register for those who do not meet the residency requirement (Ground 1).
B. The residency requirement in the policy unlawfully discriminates against women who are victims of domestic violence (Grounds 4 and 5).
C. The policy and the decision in the Claimant’s case were taken in breach of the Defendant’s obligations under section 11 of the Children Act 2004 (Ground 7).
D. The Defendant failed to apply or consider applying the exceptionality provision in the policy in taking the decision in the Claimant’s case, thereby fettering its discretion (Grounds 2 and 3).

The main relevant provision of the Localism Act is section 166A

Section166A
“Allocation in accordance with allocation scheme
(1) Every local housing authority in England must have a scheme (their “allocation scheme”) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.
For this purpose “procedure” includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken.

(3) 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).
(4) …
(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include—
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a person and the authority’s district.
(6) Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation— (a) to a person who makes a specific application for that accommodation; (b) to persons of a particular description (whether or not they are within subsection (3)).
(7) The Secretary of State may by regulations— (a) specify further descriptions of people to whom preference is to be given as mentioned in subsection (3), or (b) amend or repeal any part of subsection (3).
(8) The Secretary of State may by regulations specify factors which a local housing authority in England must not take into account in allocating housing accommodation.
(9) …
(10) As regards the procedure to be followed, the scheme must be framed in accordance with such principles as the Secretary of State may prescribe by regulations.
(11) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.
(12) A local housing authority in England must, in preparing or modifying their allocation scheme, have regard to— (a) their current homelessness strategy under section 1 of the Homelessness Act 2002, (b) their current tenancy strategy under section 150 of the Localism Act 2011, and (c) in the case of an authority that is a London borough council, the London housing strategy.
(13) …
(14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.”

S.169 provides that LAs should have regard to guidance by the Secretary of State. S.160Z sets out various classes of people who are not qualifying people for allocation (immigration status etc) and then at s.160Z(7)

(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.

The 2012 Guidance stated

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.

3.21Housing authorities should avoid setting criteria which disqualify groups of people……..

3.22 When deciding what classes of people do not qualify for an allocation, authorities should consider the implications of excluding all members of such groups. For instance, when framing residency criteria, authorities may wish to consider the position of people who are moving into the district to take up work or to escape violence, or homeless applicants or children in care who are placed out of borough.

The December 2013 Guidance stated

12. The Government is of the view that, in deciding who qualifies or does not qualify for social housing, local authorities should ensure that they prioritise applicants who can demonstrate a close association with their local area. Social housing is a scarce resource, and the Government believes that it is appropriate, proportionate and in the public interest to restrict access in this way, to ensure that, as far as possible, sufficient affordable housing is available for those amongst the local population who are on low incomes or otherwise disadvantaged and who would find it particularly difficult to find a home on the open market.

13. Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant’s household) to have lived within the authority’s district for a specified period of time in order to qualify for an allocation of social housing. The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years.”

Ealing’s Allocation Policy stated, as noted in the judgment:

f) Households that have not been resident in the Borough for the last 5 years.”

There follows an exception to disqualification on the grounds of a lack of a local connection in relation to categories of members and former members of the armed forces, their bereaved spouses and partners, in compliance with Regulations made by the Secretary of State pursuant to section 160ZA(8) of the Act. The policy then goes on:

“The Council retains the ability, in exceptional circumstances, to exercise it’s (sic) discretion when making decisions with regard to including persons on the Housing Register. Such persons will be referred to the Social Welfare Panel for agreement (e.g. where there is urgent housing need such as mental health issues, but has breached their tenancy agreement or is in the process of having legal action taken against them.)”

So, to the arguments.

On A, HA argued that

a residency requirement or local connection is permissible in determining who may be admitted to a housing list provided it doesn’t preclude people who fulfil the ‘reasonable preference’ list. HA as homeless fell under the ‘reasonable preference’ criteria at s.166A(3). Following R (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438 [our report] and Alemi, R (on the application of) v Westminster City Council [2015] EWHC 1765 (Admin) [our report], it was not permissible to set qualifying criteria that excluded those entitled to a reasonable preference (save that that applicant is disqualified on grounds such as anti social behaviour)

Ealing argued

that the purpose of the statutory amendments introduced by the Localism Act 2011 is to permit local housing authorities to have greater control of their housing allocation schemes in particular by permitting them to specify classes of persons who would not qualify for an allocation;

that statutory guidance which local housing authorities are obliged to take into account has consistently recognised that Residency Conditions are one form of control which may be introduced;

the authorities (R. (Jakimaviciute) v. Hammersmith and Fulham LBC (ante) and R. (Hillsden) v. Epping Forest District Council [2015] EWHC 98 (Admin) confirm that residence conditions are not unlawful per se and can be applied in cases involving reasonable preference; and that

the Claimant does not suggest that a Residence Condition per se (a) does not have an objective or reasonable justification in terms of the reasonable and proper policy aims which the Defendant is pursuing or (b) that there is no reasonable relationship between those two things.

Ealing further argued that “the process could not permit examination of individual circumstances in each application to see if an applicant fell within a reasonable preference category. It was also submitted that, in practical terms, given the demand for social housing, almost no London Borough could adopt residence criteria which make exceptions for those in reasonable preference categories, in particular, homelessness.”

This did not go well. For starters, the Court noted that “four London Boroughs, each with residence criteria, have adopted policies that do. Islington, Newham, Redbridge and Waltham Forest, have policies that provide a form of exception to residence criteria where the applicants are owed a homelessness duty under Part VII of the Housing Act that the Authority has accepted. […] it is evidence of the ability to frame a housing allocation policy in a way that includes a residence requirement yet ensures that the reasonable preference duty is complied with.”

And then on the general operation of Ealing’s policy:

22. The inability of the policy to identify those who meet the 166A(3) criteria but who do not fulfil the residency criteria highlights the consequences of the exceptionality provision. In this case, the Claimant’s application was, on the evidence, automatically rejected because she did not meet the residency criteria. No consideration was given to the 166A(3) criteria under the exceptionality provision, nor could it be under the Defendant’s policy. It is noteworthy that in R. (Jakimaviciute) v. Hammersmith and Fulham LBC and R. (Hillsden) v. Epping Forest District Council (ante) it was not argued that the exceptionality provision could save the authority’s policy. Moreover, paragraph 21 of the 2013 Statutory Guidance identifies in the section dealing with the need for the provision of exceptions from a residency requirement that “In addition, authorities retain a discretion to deal with individual cases where there are exceptional circumstances.” A distinction, therefore, is drawn between general exceptions for people in preference categories and individual applicants in exceptional circumstances.

23. Although a residency requirement is an entirely appropriate and encouraged provision in relation to admission onto a social housing list, it must not preclude the class of people who fulfil the ‘reasonable preference’ criteria. The Defendant’s policy does not provide for the giving of reasonable preference to prescribed categories of persons as required by section 166A(3) of the Act. In this respect the policy is unlawful.

That was the first count of unlawfulness.

On B(1). – Article 14 discrimination against women suffering domestic violence.

HA argued that the residency requirement amounted to indirect discrimination as victims of domestic violence are disproportionately likely to be women and would be less likely to establish residence criteria. Article 14 discrimination was in relation to article 8 rights.

Following R. (Winder and others) v. Sandwell Metropolitan Borough Council (Equality and Human Rights Commission intervening) [2014] EWHC 2617 (Admin) [our report] a residence requirement could amount to indirect discrimination. Art 8 was engaged, and thus potentially Art 14. So the question was whether Ealing could justify the policy.

Ealing argued that the policy was justified “as a whole on the grounds that it is to help those with local connection”, but this did not avail them much.

The Statutory Guidance (2012 paragraph 4.13 and 2013 paragraph 19) is actually supportive of victims of domestic violence. The residual discretion permitted by the policy does not save it if there is no justification for the difference. No assessment has been carried out of the anticipated beneficial effects of the policy on the one hand or the adverse effects on the other. In short, no rational justification has been advanced for treating women fleeing from domestic violence to the Defendant’s borough differently from other applicants for social housing.

Unlawfulness on this ground too.

On B(2) Unlawfulness under s.29 Equality Act

As found in B(1), there was unjustified indirect discrimination against women. As a freestanding ground, s.29 did not require any other rights to be engaged.

The policy was unlawful on this ground, as breach of s.29.

On C – breach of section 11 Children Act 2004

35. By section 11(2) of the Children Act 2004 the Defendant is under an obligation to make arrangement to ensure their functions (in this case as a local housing authority) are discharged having regard to the need to safeguard and promote the welfare of children. In Nzolameso v. Westminster City Council (Secretary of State for Communities and Local Government and another intervening) [2015] UKSC 22 at paragraph 23 reference is made in the Court’s Judgment to the absence of a definition within the section of “welfare” but that “the welfare of the child has long been given a broad meaning in family proceedings, encompassing physical, psychological. Social, educational and economic welfare.” Further it was said at paragraph 24 “It has been held that section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case.”

36. The Defendant’s case is that there is no basis on which to presume that the interests of children were not taken into account as a primary consideration in the drawing of the relevant policies. However, there is nothing to show that the Defendant made arrangements to ensure that it discharged its functions having regard to the need to safeguard and promote the welfare of children either in terms of formulating the policy or, more particularly in applying it to the individual circumstances of the Claimant and her children in her case.

37. In this respect, I also find the policy to be unlawful.

Unlawful on the fourth ground.

And finally, on D. Failure to apply policy lawfully

Even if the policy in general was lawful, there was a failure to apply it in HA’s case.

The terms of the decision letter of 8 December 2014, taken together with the absence of any evidence on behalf of the Defendant to the contrary, lead to the inescapable conclusion that no consideration was given to the Claimant’s circumstances that she did not fulfil the residence criteria. There is no indication or evidence that consideration was given to whether her case was exceptional, the discretionary provision relied upon by the Defendant. Accordingly, by failing to consider the applicability of the exceptionality provision, there was a failure to apply its own policy and for this discrete reason, the decision was unlawful.

So, the specific decision was unlawful

Decision quashed and policy declared unlawful. Multiply so.

Comment

This is a significant judgment, following clearly on from the decisions in Jakimaviciute and Alemi. While it is possible for a council to set a residence criteria for qualification to the housing list (at least so far), it is not lawful for that policy to exclude anyone who has a reasonable preference under s.166A(3) without adequate reason.

A blanket residence test is highly unlikely to be lawful. And a ‘exceptional circumstances’ discretion is also unlikely to be enough, not least if, like Ealing, absolutely no attempt to discern if circumstances might be exceptional was made at all. In fact, Ealing’s policy was found to make any consideration of the claimant’s potential exceptionality impossible.

Ealing’s attempt at a “poor councils, it is just impossible for us to fulfil our obligations” argument went as well as Westminster’s in Nzolameso. On the whole, it is not a good idea to ague that it is impossible in practice for a London Council to do X, when at least four London councils are doing just that.

So, I think the upshot is that Councils have to take ‘reasonable preference’ seriously again. No policy that has a blanket criteria that prevents those in a reason preference category from qualifying for the list will be likely to stand, or at least not without a personal reason (ASB, etc.).  An ‘exceptional circumstances’ discretion will not be enough, as explored in this judgment.

Any council that has a residence requirement for qualification for the list should be looking at this judgment very carefully indeed, or face judicial review on now established principles.

About Giles Peaker

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 +.
Posted in Allocation, Housing law - All, secure-tenancy.

8 Comments

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  2. For the avoidance of doubt, I presume that “A blanket residence test is highly unlikely to be unlawful” should actually read “…is highly unlikely to be lawful”?

  3. Pingback: Wherever I lay my hat… Residence tests for allocation policies – Nearly Legal | Current Awareness

  4. Hi I’ve been reading Alice Richardson’s comments on this case:

    “[the] power to adopt a residency requirement was emphasised in further guidance published in 2013 (Providing Social Housing for Local People). In the 2013 Guidance the Secretary of State said that he believed “that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach”: para.13. Moreover, in R. (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438; [2015] HLR 5, the Court of Appeal held that such a requirement was lawful: authorities could exclude people with a reasonable preference from applying for accommodation provided that the reason for the exclusion was because of something that was unrelated to the circumstances that gave rise to their reasonable preference. Authorities could not, however, exclude people, as a class, from applying under the scheme by reference to their reasonable preference. One of the lawful examples given by the Court of Appeal was, however, where a scheme had a residency requirement”.

    Alice goes on to say this:

    “Surprisingly, in R (HA) v Ealing LBC, the High Court held that a scheme that excluded people, other than in exceptional circumstances, from applying for accommodation who had not been resident in the borough for more than five years was unlawful because it excluded people with a reasonable preference. That, however, belies a total misunderstanding of the decision in Jakimaviciute and is in direct contradiction of the statutory guidance and Hillsden.”

    I think public lawyers are missing a trick here although I haven’t had time to read enough and I hope I have got this right so far:

    If I am owed the full Housing duty, I can’t be referred elsewhere, unless I have got NO local connection with the area I applied to, and a positive one elsewhere. I even count as entitled to join the list ‘here’ if I have NO connection, anywhere. Even if I have some, here, but also some, elsewhere, I shouldn’t be referred elsewhere, especially against my personal preference.

    If however, the council where I’ve applied for part VII rights, has added residency to its discretionary qualifications for joining the list, and I don’t have long enough, personally, I am apparently excluded?

    Yet housing experts still think that residency qualification rules are defensible, as long as there is some other personal reason for excluding the individual? So I should be judicially reviewing a residency qualification policy, because there is no further ‘bad’ personal reason in my case? The trouble is, I am thinking, my personally not having been around long enough IS a personal reason, as far as the council is concerned, and one the guidance says is a good idea. Help!!

    It seems to me – as a non housing expert – that in public law terms, if I am in the ‘owed the full homelessness housing duty’ category and there is nothing related to my behaviour I’ve done to deserve being disqualified as an individual, then a residency qualification of any period DOES risk excluding large numbers of people who are – and this is the important bit – by dint of Parliament’s intention over many years, otherwise entitled to apply to wherever they like as homeless, from joining the register – such that residency requirements should be judicially reviewed on the basis that they defeat an important tenet of the statutory framework – that is, local connection NOT being a condition for joining the register at all.

    Exclusion of a group that should have reasonable preference, we know, amounts to no preference; that’s been decided; exclusion of large numbers of people IN the protected class MAY be discriminatory or an example of no real exceptionality having been considered, – but excluding large numbers of people IN the protected class merely for an omission to have come sooner, – and as opposed to giving them merely less preference by dint of their short term residency, really seems dodgy to me, as someone interested in statutory interpretation within welfare law. What it means, in practice, it seems to me, is that it becomes more attractive to accept a referral elsewhere, even though that is not mandated by the statute, if you have at least SOME connection to the place where you applied.

    The only way I can think of distinguishing between policies on one side of the line or the other would be to distinguish between a personal reason that would be acceptable as an exclusion from qualifying because it was about bad behaviour or wealth, maybe, and a personal reason that would not justify exclusion, because it is simply neutral, but would justify less preference within the reasonable protected categories….but if I were advising an authority I would definitely say that real exceptions have to be made and that it is imprudent at the very least not to have an exceptionality policy on the face of one’s documentation.

    Any thoughts, Giles?

    • You are mixing up Part VII and Part VI Housing Act 1996. This is not about full housing duty under Part VII. The statutory requirement is that reasonable preference in an allocation scheme is given to anyone who is ‘homeless’ within the meaning of part VII HA 1996 – this would include the intentionally homeless, and the homeless but without priority need.

      Assuming your quote is right, and not missing context, I disagree with Alice on Jakimaviciute. Any qualification on priority for reasonable preference in that case was about banding within the scheme, not exclusion from it.

      It follows that the rest of what you speculate about is probably unnecessary.

      Protected classes do not equal reasonable preference. Discrimination would be a wholly different ground of challenge. Might be viable, but no relation to these cases.

    • I am so sorry but I am not understanding because the claimant in Ealing was not only homeless; she was owed the full housing duty already – and that is why the case seems to me to be about the relationship BETWEEN Part VI and Part VII?

      Under s166A any allocation scheme must offer preference to homeless AND those owed the full duty, in s193(2), it seems, hence my point that all that has been said about long term residency qualification rules being ok in principle, by advisors and government, cannot actually sit alongside the reality that homeless people and homeless people owed the full duty but with short term residency only as their personal reason form of local connection with a given authority, are thereby prevented from obtaining the reasonable preference that the legislation requires?

      I am suggesting that not being there long enough to ‘qualify’ under local rules is as much as a personal reason as bad behaviour, and that that’s why I can’t see how using residency rules regarding basic qualification itself can have been upheld, even in principle.

      No worries if I am on a wild goose chase – but to the outsider to Housing Law, it seems an obvious brow furrower….I am labouring under what you might tell me is a misconception that the whole problem with homelessness status is that it ranks no higher, by virtue of a duty to secure accommodation, than just being on the ordinary list and in another category of reasonable preference, unless a council decides to raise that status in its discretion. So I don’t think I am necessarily mixing the two parts up: I think that Part VII is an aspect of Part VI. A simple explanation why that is just plain wrong would make me ecstatic if you have time. I would do the same for you on Adult Social Care law, I promise! B

    • Yes, the point of the case is residency conditions can’t operate to exclude Part VII homeless from the Part VI allocation list, no matter their period of residency. That is it. That is exactly what the case says.

      Bad behaviour is a completely different thing. The issue here is compliance with statutory requirements, nothing else.

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