Allocation & unreasonable behaviour

YA v London Borough of Hammersmith And Fulham [2016] EWHC 1850 (Admin)

YA was in care with H&F for a number of years and was now a care leaver. During that previous period as a child in care, he had committed a number of criminal offences, though these were spent under Rehabilitation of Offenders Act 1974 at the relevant time. YA applied to be added to H&F’s housing register. H&F’s allocation scheme excluded from qualifying:

“Applicants who have been guilty of unacceptable behaviour which makes them unsuitable to be a tenant. Examples of such unacceptable behaviour include: persistent failure to pay rent and/or service charges; anti-social behaviour which has caused a nuisance by the applicant or a member of his or her household; illegal or immoral behaviour; threats of and/or actual violence; racial harassment; obtaining a tenancy by deception and/or an attempt at tenancy fraud;”

H&F refused to add YA to the register, on the basis that he was not a qualifying person. YA brought this claim for judicial review, on whether it was lawful to take account of those convictions and whether there was indirect discrimination in the Defendant’s housing allocation scheme.

It should be noted that H&F’s allocation scheme also had a ‘Care Leavers Quota’, but that inclusion in this quota could not overrule qualification decisions, except by an exceptional discretion.

YA arrived in the UK as a refugee aged 6. After staying with his sister, he was taken into care by H&F aged 11. Between the ages of 12 and 16, YA:

committed a number of criminal offences for which he was convicted. The offences included theft, assaulting a police officer, assault occasioning actual bodily harm, criminal damage, robbery, receiving stolen goods, possession of class A drugs, burglary and fraud offences. There is no evidence of any criminal offences being committed after January 2012.

All of these offences were spent under the Rehabilitation of Offenders Act which provides

4 Effect of rehabilitation
(1) Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid—
(a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in [England, Wales or Scotland] to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction; and
(b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto.
(2) Subject to the provisions of any order made under subsection (4) below, where a question seeking information with respect to a person’s previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority—
(a) the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly;
[…]
(6) For the purposes of this section and section 7 below “proceedings before a judicial authority” includes, in addition to proceedings before any of the ordinary courts of law, proceedings before any tribunal, body or person having power—
(a) by virtue of any enactment, law, custom or practice;
(b) under the rules governing any association, institution, profession, occupation or employment; or
(c) under any provision of an agreement providing for arbitration with respect to questions arising thereunder;
to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.

YA had successfully been in Semi-Independent Accommodation since age 16 and had had an AST of that accommodation since April 2014. His application for social housing – to join the register – was supported by his social worker and the Care Leavers Housing Panel. But it was refused by H&F after requesting and receiving information on YA’s previous convictions, a ‘convictions document’. Following a review and pre-action letter, H&F officer – Mr Greaves – confirmed the decision as follows:

a) the Claimant’s behaviour remained relevant even if the convictions resulting from it were spent;
b) the behaviour included incidents which were ‘hardly minor matters’ which the decision maker was entitled to take into account;
c) although [Mr Graves] ‘acknowledge[d] the argument that… you are no longer offending and that you are a model Care Leaver… I do not accept that it automatically follows from this that you should receive an offer of accommodation via the quota;’
d) he did ‘not think it is of necessity unreasonable to accept that you have made significant progress yet still to conclude that your application should be disqualified;’
e) and accordingly that [Mr Graves] was ‘satisfied that this decision was made correctly and in accordance with the relevant provisions of the scheme…’

On the two issues, the High court held as follows.

i) Rehabilitation of Offenders Act

H&F tried to argue that the issue was YA’s behaviour, not the convictions. But, given that H&F’s decision was based on a ‘convictions document’ which was a list of the convictions only, this did not get very far.

37. First, it is clear from the evidence that the Convictions Document did not contain any details of ‘behaviours’ but rather details of criminal convictions and the sentence passed in relation to those convictions. That document clearly falls within section 4 (1). Secondly, although Mr Graves refers to the behaviours linked to those offences he clearly does refer to them as criminal offences in his letter in particular see paragraph 32(d), and I do not think that calling them ‘behaviours’ changes what he is referring to, namely, criminal convictions based upon the information provided in the Convictions Document. There is no other evidence of the Claimant’s ‘bad’ behaviour and it can only be that inferences have been drawn from the information in the Convictions Document. However, Mr Graves does refer to other behaviours and it is necessary to deal with whether section 4 (1) deals with, not just a criminal conviction, but includes the circumstances ancillary to a conviction, in particular ‘the conduct constituting that offence or those offences’.

38. In my judgement it is necessary to look at section 4 as a whole and to consider the purpose behind it. Section 4(1) provides that once a conviction is spent a person ‘shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences…’. The purpose is to seek to prevent the past offences coming to light and to ensure that the rehabilitated person is treated as not having committed the offence in question. Section 4 (1) (a) prohibits evidence of spent convictions being produced in legal proceedings and section 4 (1) (b) prohibits questioning about spent convictions and ‘any circumstances ancillary’, the definition of which is referred to above. This is doing no more than making it clear within the particular circumstances of those subsections that information about the conduct that constituted the offence should not be disclosed. If the section is not looked at in this way then it seems to me that the whole purpose of it is undermined. I asked Mr Baker during his submissions how a person who had been convicted of stealing a car could be described in accordance with his analysis of section 4. He replied that it would be permissible to state that the person had taken a car without the permission of the owner. To my mind those are the elements of the offence and an individual could not be a rehabilitated person unless it was permissible for them to refuse to provide such information or without a prohibition on such information being provided. Anyone hearing such a description would know that the person had committed a criminal offence.

39. Furthermore, section 4 (1) when outlining the relevant circumstances refers to a person as being treated as someone ‘who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction.’ Section 4 (1) (a) also refers to the prohibition relating to a person who has ‘committed or been charged with or prosecuted for or convicted of or sentenced for any offence…’. In contrast section 4 (1) (b) refers to ‘spent conviction or spent convictions’ and includes the phrase ‘or any circumstances ancillary thereto.’ It is necessary in section 4 (1) (b) to refer to ‘any circumstances ancillary thereto’ because the drafting of the section only uses the word ‘conviction’ and this makes it clear that the prohibition is wider than just the conviction itself. This is not necessary in the rest of section 4 as the drafting is wider and includes circumstances that are ancillary to the conviction, such as committing the offence and sentencing. Section 4(5) supports and reinforces the requirements of section 4(1).

40. It may be possible to identify in a person who has been convicted of a series of criminal offences ‘bad’ behaviours that do not form part of the conduct constituting the offences. If so, it would be permissible to disclose those behaviours. For example, if a person is generally violent then he/she might be described as a violent person notwithstanding any convictions. However, if he/she had committed one violent offence then, if it was spent, it would not be permissible to disclose it. In this case, there was no substantive evidence of ‘bad’ behaviour other than the evidence provided by way of the Convictions Document.

On that basis, the decision was unlawful, as it relied on the convictions which were spent.

ii) Breach of Article 14 – discrimination.

YA argued that H&F’s policy was discriminatory against care leavers, with art 8 engaged, so art 14 came into play. The court found this meant a four stage test:

  1. There are four elements to be established. First, the Claimant has to show that the process applicable to Care Leavers under the Defendant’s allocation scheme does come within the scope or ambit of article 8. Secondly, that Care Leavers are a group that come within ‘other status’ at the end of the list of grounds of discrimination in article 14. Thirdly, there is a potential for discrimination and fourthly, if there is discrimination whether it can be justified by the Defendant.

While there was no absolute right to accommodation under Art 8, it was engaged as the allocation scheme had an impact on private life.

Being a care leaver could amount to ‘other status’ for the purposes of Art 14.

The Care Leavers have had something done to them in that they have been looked after by a local authority under a statutory regime. However, as a result of that they will have personal characteristics given their experiences of being in care coming within the concentric circle described by Lord Walker as ‘what happens to them.’ I see no distinction between the Care Leavers as a group and those who are homeless.

(Per Lord Walker in R (RJM) v the Secretary of State for Work and Pensions [2008] UKHL 63).

There was arguably indirect discrimination. H&F’s own documents indicated that children in care were significantly more likely to have behavioural difficulties and contact with the criminal justice system. Burnip v Birmingham CC [2013] PTSR 117 followed.

The issue then was justification. And the court found the discrimination was justified:

84. In my judgement the Defendant has established that the discrimination is justified. I agree with Mr Baker’s submission that in so far as there was any request by social services in relation to the Claimant it was for the housing department of the Defendant to consider the nomination by the CLHP in accordance with the allocation scheme. Care Leavers do have special treatment in any case through the Care Leavers’ Quota. The evidence is that section 2.14 (h) is designed to minimise the risk of those with behaviours that would have an adverse impact on others being allocated housing through the housing register. Not only does this improve the environment for relevant residents in general but it reduces the risk of the Defendant expending limited resources on legal proceedings in the event that is necessary to take proceedings as identified by Ms Shepherd. To my mind these are legitimate aims that justify the limitation on the right. It is a rational measure to limit access of people with behaviours such as those identified in section 2.14 (h) to the housing stock and it is the least intrusive measure. The assessment by the social worker and CLHP are for purposes that are different to the assessment under the housing allocation policy. I do not believe that it is necessary to exempt this group from the section 2.14(h) bearing in mind its legitimate aims. Any Claimant may still be able to obtain accommodation in the private sector (although no doubt that is not necessarily easy) and it is not a total bar on obtaining accommodation.

85. The Defendant has to consider the rights and interests of the whole of its community and as can be seen from the statistics, it is unusual for Care Leavers to be denied access to the housing register, in particular because of the director’s discretion (which allows consideration of special circumstances and avoids a blanket application of the section) and therefore I think it is a proportionate measure striking a fair balance between the rights of the individual and the interests of the community. The 3 tests from Burnip and MA referred to at paragraph 78 above are not the only tests for justification, or lack of it. The group of Care Leavers may be small and easy to identify but I do not think that is the central point in the question of justification in this case. I also have in mind what Lord Walker said in RJM further on in paragraph 3 namely: ‘The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify.’ The personal characteristic here is not at the core and so justification is not as difficult as if it were. It is as Lord Nicholls stated: ‘…whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.’ I have concluded that in this case, the Defendant’s allocation scheme in relation to its treatment of Care Leavers meets that test and the test set out by Lady Hale in Tigere. Accordingly, I find that the claim on article 14 fails. For completeness, bearing in mind the test for permission at paragraph 15 of W v the Secretary of State for the Home Department [2016] EWCA Civ 82 for the same reasons given above I do not give permission for judicial review on this ground.

So, the policy was found not to fall foul of Art 8 and Art 14 by way of justification, but the specific decision on YA’s prior (and spent) convictions was unlawful.

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 +.

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