Making it up as you go.

C, R (on the application of) v The London Borough of Islington (2017) EWHC 1288 (Admin)

C was accepted for the full housing duty by Islington, with her 3 children, as a result of domestic violence. C is profoundly deaf. She had been living in Southwark, but following the DV, was in refuge in Islington and applied as homeless there. She was, eventually, given 3 bed temporary accommodation in Islington.

Under Islington’s allocation scheme, she was assessed as having 110 points (100 residence points for living in the borough for 3 of the last 5 years, and 10 ‘homeless points’). Islington wrote to tell her this was not enough for her to bid for social housing – the threshold was 120 points – and

“…. while we will help you find somewhere to live it will probably not be a council flat. However the council will secure a suitable home for you and your family. This will be
“leased accommodation” – a home with a private landlord for a fixed amount of time, usually three years but can be up to five years.

C began a judicial review. Initially the challenge was on the grounds that a) the points threshold failed to give a ‘reasonable preference’ under section 166A(3) of the 1996 Act, and b) that the local lettings policy within the scheme, unlawfully discriminated against homeless people, victims of domestic violence and therefore women, contrary to Article 14 read with Article 8 European Convention on Human Rights, sections 29 and 149 of the Equality Act 2010, and is also a breach of section 11 of the Children Act 2004.

However, Woolfe, R (On the Application Of) v London Borough of Islington (2016) EWHC 1907 (Admin) (our report) put paid to the first ground of challenge (subject to appeal) and Islington had agreed to review the 110 point award. So the Local Lettings policy was the only ground.

In the meantime, a report on C’s mental health, PTSD and impact on housing need had been obtained by C. This found:

“The combination of the lengthy process which involves treatment of PTSD and depression and [the claimant’s] sensory impairment and daily functioning difficulties, have implications for the need for permanent housing. Any house move involves, for example, re-organising of bill payment, nursery and school places, childcare, GP registrations, liaising with landlords and finding new routes. All of which would be a very demanding process for [the claimant] both emotionally and practically and she requires assistance for every step. Any friendships she has developed with individuals living nearby would be difficult to maintain and less practically helpful and she would be completely socially isolated. Even if she is moved within borough, these difficulties would be highly likely to interfere with therapy and cause it to be paused. This would be ill-advised once an individual has begun the second phase of the trauma intervention involving detailed re-living of the worst moments of their experience. This leads to temporary increase in symptoms such as flashbacks and nightmares and therefore should not be interrupted. Further, the increase in social isolation is negatively associated with prognosis……”

In response Islington obtained reports from Dr Keen and Dr Wilson of Now Medical. These helpfully concluded that C’s current temporary accommodation was suitable and there was no basis for medical points. C had asked for medical points and/or welfare points. Welfare points under Islington’s scheme were

40 – 150 “Welfare points”, “…. may only be given where housing or other circumstances severely affect the welfare needs of the applicant or a member of the household. Where there is welfare or social issues, these will be assessed by either the council’s medical advisor or senior officers.”

Islington refused welfare points and C sought and was allowed to amend the JR to challenge that refusal.

And then, in a witness statement in the course of proceedings, Islington’s head of housing needs said:

“Within the Scheme, in general, however, victims of domestic violence are likely to have presented to Islington as homeless applicants under Pt 7 and they are prioritised accordingly. The method by which homeless applicants in general are allocated property under the Scheme is, in practice, different from that for the large majority of other applicants who seek and receive offers through the Choice Based Lettings system and its bidding process. In contrast, allocations to homeless applicants (which in 2015 – 16 accounted for 344 of 1,172 allocations, or 29% overall) were very largely made by way of direct offers (128 allocations) or supported choice (184 allocations). The former involve a property selected for the applicant by Islington, without any bidding; under the latter, an applicant is given 4 weeks to bid but if not successful within that period is then given a choice between 2 suitable properties. Accordingly, in 2015 – 16, only 32 allocations to homeless applicants were the result of the usual bidding process common to other applicants.”

C argued that this showed that “about 91% of properties allocated to homeless applicants under the 2015 scheme, were allocated outside the choice based lettings system (37% being allocated after direct offers had been made to the applicants, whilst 54% were allocated through supported choice). Moreover, that not only was this not a matter which had previously been disclosed by the defendant, but it was not ascertainable from the 2015 scheme.”

This, C argued was unlawful as contrary to statutory duties “to have a scheme as to the procedures to be followed in allocating housing accommodation (section 166A(1)); to adhere to it (section 166A(14)), and; to enable the claimant to effectively exercise her right to seek information as to how her application is likely to be treated under the scheme (section 166A(9)(i)). Moreover, that because the defendant was allocating social housing to homeless applicants in an undisclosed manner, outside the terms of the 2015 scheme, it was unlawful per R (Lumba) v SSHD (2011) UKSC 12″. Permission was sought and given to amend to include this new ground.

On the welfare points ground, the court held that:

I accept that the inclusion of the words, “settled accommodation” in the 2015 scheme, would undoubtedly include the provision of Part VI social housing, I do not consider that it is necessarily limited to such accommodation. On the contrary, I consider that, depending upon the circumstances, and as a matter of fact and degree, the provision of Part VII accommodation may also amount to settled accommodation; such that, if the Part VII is not settled accommodation, then this may lead to an award of 40 category C welfare points if the applicant’s household includes someone with a need for such accommodation, whilst if the Part VII accommodation is settled accommodation, there would be no basis for an award of 40 category C welfare points.

As C was already in ‘settled accommodation’ under this approach, Islington’s decision not to award further welfare points was lawful.

On the Local Lettings policy, this stated

The council is committed to ensuring that its new homes are meeting the needs of the local community. We will therefore introduce a local letting policy for all the homes we construct on existing estates that will prioritise the lettings of the new homes to people currently living on the estate on which they are being built.

[…]

New build homes for social rent will prioritise the lettings of the new homes to people currently living in the ward in which they are being built.

C argued this unlawfully discriminated against homeless people, victims of domestic violence – most often women, contrary to Article 14 read with Article 8 European Convention on Human Rights, sections 29 and 149 of the Equality Act 2010, and was also a breach of section 11 of the Children Act 2004.

Contrary to Islington’s argument, C and the beneficiaries of the policy were in a sufficiently analogous position – as seekers of allocation of social housing – for article 14 to bite.

I consider that Article 14 does have application between the claimant and the beneficiaries of the local lettings policy, and that, under the terms of the latter policy, there is a clear difference in treatment between them which, unless justified, is unlawful. In that those who have had to move from the area in which they had been living due to domestic violence, and have thereby become homeless, will be unable to compete for new housing on the same favourable terms as the tenants of social housing situated in the area in which the new homes have been built. Moreover, that because of the high likelihood of victims of domestic violence being women, that this also amounts to discrimination on the grounds of sex.

However, the court could consider the context of the whole allocation policy when addressing issues of justification of the discrimination. The fours issues to be decided were

i. Does the policy have a legitimate aim of sufficient importance that it could justify a restriction on the claimant’s right not to be discriminated against?
ii. Is the policy rationally connected to that aim?
iii. Could a less intrusive policy have been used?
iv. Has the defendant struck a fair and proportionate balance between the severity of the consequences for the claimant, and the importance of the aim and the extent to which the policy will contribute to that aim?

The first two were conceded by C. The third question fell to be decided on the ‘manifestly without reasonable foundation’ test. But the last, it was decided, was for the court’s determination, not only on a ‘manifestly without reasonable foundation’ basis.

Islington argued that the policy did not create a bar to C or anyone in her position getting social housing as the policy would create churn. The effect of the policy was being monitored. The court accepted this and found there was no evidence put forward that the policy did operate as a bar.

It is apparent that prior to the local lettings policy being devised and implemented, the defendant carried out an assessment of its discriminatory effect, and continues to carry out such monitoring. Moreover, that in the context of the 2015 scheme as a whole, the effect of the local lettings policy, as was intended, has a beneficial effect upon the provision of social housing within the borough, in that it facilitates the securing of reasonable preferences to those, including the claimant, who are entitled to it under section 166A(3) of the 1996 Act. It may be that it is always possible to think of possible ways in which to create less intrusive policies in general. However, I do not consider that the defendant’s local lettings policy could be any less intrusive, in the sense of being less detrimental to the claimant, and still maintain its legitimate aim. Certainly, the defendant’s decision on this point, is not manifestly without reasonable foundation. Furthermore, in relation to the issue of proportionality, I consider that, bearing in mind the extent to which the local lettings policy contributes to that aim, the local lettings policy does strike a fair and proportionate balance between the severity of the consequences for the claimant, and the importance of the aim.

The Ealing cases, R(HA) v Ealing LBC and R(H) v Ealing LBC were distinguished as Ealing’s policy had had a residency policy precluding homeless altogether, and no functioning ‘exceptions’ policy.

The discrimination in the policy was justified. The PSED argument fell on similar grounds, in particular the overall policy and monitoring. So did the s.11 Children Act argument.

This left the ‘unlawful allocation outside the 2015 scheme’ ground.

Save for the discretionary power given to the Director of Housing Needs and Strategy to award additional priority and approve housing offers, “in special cases with exceptional needs”, the 2015 scheme provides for three methods by which social housing is allocated by the defendant:
i. under choice based lettings;
ii. by supported choice, and;
iii. by direct offer.

And of course, bidding required 120 points. It was implicit in the scheme that this threshold also applied to ‘supported choice’ and direct offers (as descriptions of both made reference to successful/unsuccessful bidding).

During the course of the hearing, Islington informed the Court that direct offers to the homeless in fact only required 100 points. This was not stated in the policy, or indeed anywhere else.

Firstly, it seems to me, as I have already stated, that it was not ascertainable from the 2015 scheme that those with only 100 points, including the claimant, are entitled to be made the subject of direct offers, as a distinct method, separate from any discretionary power by the Director of Housing Needs and Strategy. Secondly, there is nothing in the 2015 scheme which sets out the criteria which the defendant uses to make direct offers, so as to enable an applicant, such as the claimant, both to make a realistic application to be dealt with under this system, and to know whether they are likely to succeed. Thirdly, this has had a direct effect upon the claimant, especially given the fact that in 2015 – 2016 about 37% of homeless applicants were made direct offers, in that the claimant would have been entitled; to apply for a direct offer; if unsuccessful, to understand why she had been unsuccessful, and; if the refusal was unlawful, to challenge it.

This was not merely a matter of detail. it amounted to a breach of s.166A(1) Housing Act 1996 and was unlawful. Given the lack of evidence around the consideration of C’s position and why a direct offer was not made in her case, that decision was also held unlawful.

Comment

So, discrimination can be justified, temporary accommodation can be settled, but allocations outside the clear terms of the allocation policy are unlawful. Particularly if you have different policy that you’ve made up but haven’t told anyone about.

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, Homeless, Housing law - All.

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