22/12/2020

Preference is not absolute – getting your allocation scheme wrong.

Nur & Anor, R (On the Application Of) v Birmingham City Council (2020) EWHC 3526 (Admin)

This was (part of) a judicial review of Birmingham’s implementation of its own allocation scheme. But before we get into the detail, we have to note at the start (as does the judgment) that this is an object lesson in how not to defend a judicial review claim by Birmingham. This is paragraph 1…

Unfortunately, this case is an object lesson in how a public body should not respond to public law proceedings. The Council have failed properly to engage in the proceedings, appear to have misunderstood the nature of public law proceedings and, when it finally started to engage with the issues at a very late date, completely misunderstood the duties on it as a public body. Further, when responding to the single issue on which I was able to hear argument today, counsel for the Council, Mr Manning, found himself in the near impossible position of being required to advance submissions on the construction of the Council’s policy which were plainly in conflict with how his own solicitors had explained how they believe the policy operated.

We’ll see some details of this object lesson as we go on.

Ms Nur lives in Birmingham with her three adult daughters, one of whom

suffers from cerebral palsy and has learning difficulties. She is at risk of unintentional self-neglect if she is not supported with daily living activities. Her disabilities mean that she has been assessed as needing a level access shower, access to stairs with bilateral handrails and that she would benefit from accommodation with a downstairs toilet. Z is in receipt of a personal independence payment as a result of her disabilities and Mrs Nur receives a carer’s allowance in respect of Z. Mrs Nur is Z’s main carer and it is clear from the evidence that Mrs Nur is a devoted mother who provides support for Z for a very large part of the time. Mrs Nur does not work because of her caring responsibilities for Z and is therefore in receipt of state welfare benefits.

The family were living in private rented accommodation and in 2011 registered on Birmingham’s housing list. Ms Nur was initially required to bid for 4 bed properties due to the scheme, but this was changed to 3 bed at her request (as someone aways had to share a room with Z) in 2019. Her housing priority had changed in 2018 when her landlord served notice, and following a possession order, the family were given temporary accommodation as homeless. This, it was acknowledged by Birmingham, was not a long term solution as the property was not adapted, and Ms Nur was given high priority on the housing list.

However, despite reaching position 1 on the list, Ms Nur kept finding her bids on suitable 3 bedroom houses were not being allowed, with entries reading:
“Bid skipped. Customer has no dependent children”
“Bid skipped: Property not in line with medical recommendations and/or mobility category” (this was not an adapted property)

Two further bids were ‘skipped’ on the basis of ‘no dependent children’.
Matters came to a head in July 2019 when Ms Nur bid on a three bedroom house with adaptations that would make it suitable for Z. This bid was also ‘skipped’ on the basis that she had ‘no dependent children’.

Ms Nur found solicitors (Community Law Partnership) and a pre action protocol letter followed. Birmingham’s response stated:

In accordance with the Housing Allocations Allocation Scheme 2017, 8.1 states “To enable the best use of the Council and partner registered provider stock properties will be allocated to those applicants who need that size and type of property. As such, preference for houses with two or more bedrooms will be allocated to families with dependent children”.
In light of the above, any applicants with dependent children and in the same or higher band will be given preference over families that do not have dependent children.
Your client’s children are all adults, and therefore she is classed as not having dependent children.
Your client continues to be eligible to bid for accommodation, including bids for flats and maisonettes”

The judicial review claim followed.

Birmingham’s allocation policy stated:

The type of properties
To enable the best use of the Council and partner registered provider stock, properties will be allocated to those applicants who need that size and type of property.
As such, preference for houses with two or more bedrooms will be allocated to families with dependent children.
Sheltered housing and extra care accommodation will be allocated to older people.
Properties with adaptations will be allocated to persons with a physical or sensory disability”

How Birmingham interpreted that was again set out in July 2020 when Ms Nur bid on another 3 bed house with adapatations suitable for Z. The council told her:

“The property is a house and the Council have to make best use of its housing stock. This is reflected in the Housing Allocation Scheme that preference for houses will be allocated to families with dependent children. As the property is a house with adaptations, the bid list was checked for applicants with dependent children first. If no one was found on the bid list with dependent children, then at the time of shortlisting the bid list would have been revisited to establish a customer on the bid list who may be eligible for the property with a physical or sensory disability…..
We confirm that the property is no longer available as it has been allocated to a family with dependent children.”

The claim was on four grounds:

i) The Council acted unlawfully in failing to allocate an adapted property to a person with physical or sensory disability in contravention of the terms of the Allocation Scheme and thus breached the duty under section 166A of the Housing Act 1996;

ii) Insofar as the Council’s Allocation Scheme purported to give priority to families with dependent children under the age of 18 over those with disabilities, the Allocation Scheme was unlawful because:

a. It constituted unlawful indirect discrimination against families with household members who were disabled;
b. It breached the PSED; and
c. it failed to comply with the duty under section 29 of the Equality Act 2010 to make reasonable adjustments for persons with disabilities;
iii) The Allocation Scheme was unlawful on the grounds of unfairness; and

iv) The Allocation Scheme was irrational.

But after issue, Birmingham’s failings began.

i) There was no Acknowledgment of Service filed within 21 days (or at all)
ii) Despite this, the Council served a skeleton argument before the permission hearing, seeking to take part, but it did not engage with the argument that Birmingham had misunderstood its own policy.
iii) At permission, Ms Nur was allowed to serve amended grounds, with directions for Detailed Grounds of resistance and evidence to be served within 56 days of the amended grounds. No Detailed Grounds or evidence were served within 56 days.
iv) In September 2020 Birmingham agreed to make an exception for Ms Nur “in order to avoid costly litigation”, and a suitable property was found for her. Birmingham then promptly asserted that the claim was now academic. The court’s response on that argument:

This letter indicates a fundamental misunderstanding of the differences between private and public law litigation. Public law litigation seeks a review of the legality of the decisions of a public body on the request of the person with standing. In this case, permission had been granted to review the lawfulness of the Council’s Allocation Scheme and in particular to determine whether it was acting lawfully in preferring applicants with children over applicants with dependent disabled adults when allocating houses. That issue affected disabled people across Birmingham and was not limited to the personal circumstances of Mrs Nur and her family. Further, the claim was being brought on her behalf by a firm of solicitors who represented a large number of vulnerable people in the Birmingham area who were affected by the Allocation Scheme. Mrs Nur did not cease to have standing under CPR 54 as a result of this discretionary offer of accommodation. Further, she had an existing unresolved discrimination claim against the Council. I therefore consider that there was no proper basis on which the Council could have considered that this claim had become “academic” as a result of a decision by a Council officer to bypass the terms of the Allocation Scheme by making an offer of a house to Mrs Nur.

v) Four days before the substantive hearing, Birmingham made an application to serve Detailed Grounds of Resistance and to serve evidence. There was no explanation of why this had not been done before, and no apology. The application continued to assert that the claim was academic. Birmingham asserted that there was no need for them to seek relief from sanctions under CPR 54.9(1)(a).

This was not well received.

the Council was simply incorrect to suggest that it was entitled to rely upon CPR 54.14 to file late Detailed Grounds and evidence without having, at any stage, either filed an Acknowledgement of Service or having complied with the terms of the directions order concerning the filing of detailed grounds and evidence.

The witness statement from a council officer attached to the application “entirely failed to engage with the duty of candour resting on every public body against whom judicial review proceedings are brought.” It did not

“disclose any of the documents which explained the decision-making process undertaken by the Council leading up to the decision to adopt the Allocation Scheme in November 2018. Notwithstanding the fact that the challenge was based on an alleged breach of the PSED, the evidence did not disclose the equalities analysis prepared by the Council in advance of the adoption of the Allocation Scheme.”

It contained no evidence as to the proportion of 3 or 4 bed properties that were flats or maisonettes rather than houses, or any address to the apparent ‘catch 22’ faced by Ms Nur or people in similar positions, in which the only properties should could effectively bid for – adapted 3 bed properties – would never be allocated to her, given that there would always be families with dependent children bidding, even if with lower priority. The Public Sector Equality Duty should have meant that the council should recognise the potentially discriminatory impact of its policy and to have actively decided to have prioritised one group over another, if that was what it had done.

Given the completely inadequate approach that the Council had taken to the preparation of its evidence, I declined to give permission to allow the Council to file and serve Detailed Grounds out of time and to rely upon Ms Pumphrey’s witness statement as evidence to attempt to respond to the discrimination case faced by the Council.

It was against this unpromising background that the hearing went ahead.

Reluctantly, the Court acknowledged that the grounds on indirect discrimination, breach of PSED, Equality Act, unfairness and irrationality would have to be adjourned pending evidence from Birmingham. But the hearing of the ground of being mistaken about their own policy could go ahead, and did. The upshot:

Firstly, the words of the policy draw a distinction between the second paragraph which (a) only applies to houses and not other types of properties and (b) provides that a “preference” for such houses being allocated to families with children. In contrast, the third and fourth paragraphs do not draw any distinction between the different types of property but instead identify a particular characteristic of the property which makes it suitable for a specific group of persons. The wording then provides that this particular type of property “will” be allocated to a defined type of person, namely a person for whom that particular type of property is suitable. There is clearly a difference between a property allocation decision where preference will be given to a category of persons and a property allocation decision which is governed by a rule under which a particular type of property will be allocated to a defined category of persons.

Secondly, it would be nonsensical to interpret the policy in a way that gave preference to allocating house within sheltered housing to a family with children when such a development is specifically intended to benefit older persons. That approach would not serve the interests of either the existing older people within that development and may well not be appropriate for a family with young children. It seems to me inherently unlikely that this was the intended consequence of the policy.

Thirdly, the Council has a duty to make reasonable adjustments in the discharge of its public functions in relation to persons with disabilities. Where a property of any type has been specifically adapted to meet the needs of disabled people, it seems to be that it would be an entirely appropriate reasonable adjustment to provide that that property was to be allocated to a person with disabilities. Accordingly, the construction advanced by Mr Nabi would appear to be entirely consistent with the Council’s duties towards disabled persons whereas the construction advance by the Council would cut across that duty.

Fourthly, I see no need or justification for reading additional words into the policy to make some paragraphs subservient to other paragraphs. If the drafter of the policy had intended one part of this policy to take precedence over another part, it would have been straightforward to say so. However, the use of the words “preference” and “will be allocated” points in the opposite direction. I therefore accept Mr Nabi’s submission that the Council acted in breach of its own Allocation Scheme by skipping Mrs Nur from the Wash Lane property, which was a disabled adapted property, because she had no children in her family unit.

Counsel for Birmingham had submitted, apparently on instructions “that the true construction of the policy is to give families with children a “head start” in being considered for a house.” But that was not what Birmingham’s officers had done. (Nor was it how Birmingham’s solicitors had described the policy operating). But there was:

nothing in the Allocation Scheme which explains what level of weighting should be allocated to families with children in comparison to other applicants, so as to give effect to the idea of a “head start” and the weighting to be applied to other factors, so that those other factors can outweigh the initial advantage of a family having one or more children. The Allocation Scheme is required to operate in accordance with some measure of transparency and predictability so that all applicants know they are being treated fairly (…)
I can understand why, in the absence of any defined set of additional factors that Council officers were required to take into account when operating the Allocation Scheme rules meant that the “preference” which was given to families with children turned into an effective automatic decision in favour of any family with children in preference to any family without children. That was wrong for the reasons set out above but a transparent and workable policy needs to explain to decision makers what other factors should be taken into account and which, on the facts of an individual case, may outweigh the initial advantage given to a family with children.

A declaration that the Council had misunderstood the terms of its own scheme, and acted unlawfully in its implementation, was granted.

Comment

I think that finding has to be right. An allocation scheme that produces absurd results, in particular for those with significant needs, is either being interpreted wrongly or needs to be revisited. An implementation that effectively meant only those with dependent children could get houses (even where the properties were adapted), despite the very obvious need for households containing people with disabilities for adapted or adaptable houses, should have raised concerns and attention within the council once that became apparent.

However, Birmingham sought to defend their interpretation. And their means of doing so was, well, painful. Two lessons in particular to be drawn:

i) Do get in an acknowledgement of service, or if not and later given directions to file Grounds of Resistance, comply with those directions. There is no free ride to put things in whenever you want. As the court put it:

Rule 54.9 defines the conditions which must be met by a party which fails to file an Acknowledgement of Service but nonetheless wishes to “take part” in a judicial review hearing. Rule 54.9(1)(a) refers to the position at a permission hearing and rule 54.1(b) refers to the position at a “hearing of the judicial review”. Accordingly, a party which fails to file an Acknowledgement of Service is still entitled to take part in a final judicial review hearing provided that that party complies with directions made by the Court concerning the filing of Detailed Grounds and evidence. There is no express power given to the Court to allow a party to “take part” in a judicial review hearing where that party acts in breach of either CPR 54.14 or in breach of the terms of a court order requiring it to file Detailed Grounds and evidence. I accept that the Court’s general management powers under CPR 3.1 would allow the Court to permit a party to appear by counsel in a judicial review notwithstanding that that party had failed to comply with the terms of CPR 54.9. Nonetheless, the absence of any express power to do so in CPR 54.9 suggest to me that the Court should be cautious before doing so.

ii) When putting in evidence, it has to address the claim and it has to comply with the duty of candour, which “requires the Council to make proper disclosure so that the decision-making process which led up to the adoption of a policy which had these effects can be examined by both the Claimant and the Court.” This is particularly so on Public Sector Equality Duty cases.

iii) Oh, and offering accommodation might work to make a s.204 appeal academic, or a JR of a refusal to provide interim accommodation pending review, but it won’t work where the grounds and the remedy sought are significantly broader than ‘I should be given accommodation’. In fact, as here, it might go to shore up the case against you.

 

 

 

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.

4 Comments

  1. Eian Mantle

    [pointless snark removed by NL, because it managed to be both spectacularly irrelevant and inaccurately insulting to the claimant. We don’t allow insults.]

    Reply
  2. Ron Platt

    I refer to the use of the word “children”. To a Parent a child or children are that irrespective of her/his/their age/ages. Therefore, I think the Council should not consider “children” as ceasing to be “children” because of age. If a Person’s Birth Certificate indicates that that Person is the progeny of either of the Persons named as Parents on the Person’s Birth Certificate then the Person is the Child of either so named Parent. I suppose that that would extend to Adoption Certificates.

    Reply
    • Giles Peaker

      No, a ‘child’ is under 18 years old, by statute.

      Reply
  3. Deborah Russell

    With adult children Birmingham council do not want you to bid on a property with a garden. There is no human right to a garden unless you live in Birmingham and have children under 18 as they over ride everybid.

    Reply

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.