RR, R (On the Application Of) v London Borough of Enfield (2024) EWHC 2501 (Admin)
This was a judicial review challenge to LB Enfield’s allocation policy for priority on the housing register, on the basis that it discrimated against disabled applicants who had the full housing duty under Part VII Housing Act 1996, who were also disabled.
RR had applied as homeless to Enfield, and the full housing duty had been accepted. The factual background of RR’s household is that:
RR is now aged 39 (date of birth, 31 March 1985) and is a married man with two young children, aged 4 (date of birth, 12 April 2020) and 1 (date of birth, 1 June 2023), and acts as a full-time carer for his wife (known as “ED” for these proceedings). He arrived as a refugee from Iran approximately 25 years ago. He married ED and their first child was born on 12 April 2020. ED applied for and was granted the right to join RR as his spouse on 10 March 2021. Unfortunately, a few days after that decision, ED was very seriously injured in a car accident in Iran when she sustained brain damage and life-changing physical injuries including a fractured pelvis, liver damage, spleen removal, a broken left collar bone, broken ribs and a bleed into the lungs.
These injuries have caused her mobility problems, problems with her vision and dizziness, and have put her in constant pain in her legs, lower back and pelvis. RR had flown to be with ED in Iran immediately after the accident until she was well enough to travel to the UK. Prior to his wife’s arrival in the UK with their young child, and ED settling as a permanent resident in October 2022, RR states that he was working as a taxi driver and planning to train as a lorry driver. When she came to the UK, RR became ED’s primary carer, and was therefore unable to work. The occupational therapist has set out that ED suffers from leg cramps which can cause her to lose power in her legs and fall; she has little power in her left arm, and is unable to lift it above shoulder level, which limits her ability to grip and her ability to wash and get dressed independently. Her brain injury appears to have heightened her emotions and she can become very upset and frustrated.
Enfield had placed RR’s household in a one bed flat as temporary accommodation and placed RR on the housing register (after the hearing of the JR and after the birth of RR’s second child, but before judgment, Enfield had accepted the accommodation was unsuitable, and offered alternative temporary accommodation, which was apparently accepted.)
RR was given 200 points under Enfield’s allocation scheme for being homeless with a full housing duty accepted.
RR contended that additional points should also have been given under the “health and wellbeing” element of Enfield’s allocation scheme. Enfield refused this on the basis that the allocation scheme prevented additional points for low or medium ‘health and wellbeing’ additional preference from being awarded to those with the ‘homeless’ reasonable preference.
That resulted in this judicial review.
Enfield’s allocation scheme provided for reasonable preference points of up to 200 for those ‘homeless or threatened with homelessness’ (for whom a full Part VII duty had been accepted).
The ‘health and wellbeing’ priority was said to be engaged ‘where the applicant, or a member of their household, has a long-term health and wellbeing issue which is being affected by their current housing.’ Low priority received 50 points, medium 150 points, and high 1000 points (the maximum point level under the whole allocation scheme).
The top of the points table said
“Applicants will qualify for the housing register if they meet one of the criteria set out below. Applicants may meet more than one of the criteria set out under each of the groups, in which case, they will be put in whichever category would award them the highest level of points. Applicants will not be awarded points from more than one of the below boxes at any one time. The maximum number of points is 1000.”
The health and wellbeing preference was broken down as:
High is where the applicant has an urgent need to move, because current living conditions put the applicant’s life at risk if they do not move; or causes the applicant to be completely housebound and they would regain substantial independence if an alternative property were made available (including a wheelchair adapted home for a wheelchair user); or puts the lives of others at risk – for example an inability to self-evacuate in the event of a fire. Medium is where the applicant’s need to move is less urgent and not life threatening but their living conditions are unsuitable and if left unresolved their quality of life will deteriorate. Low is where the applicant’s living conditions cause them difficulty in carrying out their daily activities, but this is neither life threatening nor would greater harm or progression of the illness be caused if they did not move. Both medium and low priority for health and wellbeing will give an applicant additional points provided that they meet one of the other reasonable preference criteria, subject to the exclusion of those applicants who have points awarded as being Homeless or Threatened with Homelessness.
The policy also stated, under ‘additional preference’:
that applicants are eligible for additional points dependent on their circumstances. Additional preference points will only be awarded in addition to points gained through the Reasonable Preference categories. Health and Wellbeing points are not available to applicants who have points awarded as being Homeless or Threatened with Homelessness.
It followed, on Enfield’s view, that unless there was high ‘health and well being’ need, someone who qualified under the ‘homeless’ reasonable preference would not receive additional points for low or medium ‘health and well being’ need, only high need.
RR brought various challenges to this policy.
i) Enfield had misunderstood their own allocation scheme. There was no cap by reason of being homeless.
The Court held that because RR was entitled to suitable accommodation under section 193 Housing Act 1996 (under Part VII), the ‘high’ health category could not apply. If the accommodation was such as to give rise to a high rating, it would not be suitable under Part VII and could be challenged by review and appeal. The housing authority is to be assumed to be complying with its obligations.
There has been no misreading of the allocation scheme and it is neither unclear nor contradictory. Enfield have not fallen foul of the principles enunciated by Lord Dyson in R(Lumba) v Secretary of State for the Home Department (2012) 1 AC 245. There is no contradiction between “highest RPG wins” as it is put by RR and the decision challenged. It is not “highest RPG wins” but the highest category within the RPG that the applicant can be placed in, and that has happened here. For the reasons already set out, RR cannot fall within the high Health and Wellbeing Reasonable Preference Group given the circumstances of the part 7 housing.
ii) Article 14 discrimination when take with Article 8
This was rapidly dimissed by the court, on the basis that Article 8 rights did not arise in a social housing allocation scheme:
In R(Z & anr) v Hackney LBC & Anr (2019) EWCA Civ 1099, the Court of Appeal held that the challenge to the local authority’s allocation scheme, brought by a family living in temporary accommodation, did not fall within Article 8. RR contends that the decision in Z was on its own particular facts. However, the issue as to whether a housing allocation policy falls within the ambit of article 8 was earlier considered in R(H) v Ealing LBC (2018) PTSR 541, referred to in Z. Neither Davis LJ nor Underhill LJ in H accepted that there was a right to settled or permanent accommodation protected by or within the reach of Article 8 and, insofar as Sir Terence Etherton in H was relying on an obiter statement of Goss J in R(HA) v Ealing LBC (2016) PTSR 16 to find that one of the local authorities’ groups within its housing allocations polices fell “within the scope of family life protected by article 8”, that was not followed by Lewison LJ for good reason. In Z, Goss J. had not been referred to the decision of Michael Supperstone KC (when sitting, as a Deputy High Court Judge) in Dixon v Wandsworth LBC (2007) EWHC 3075 (Admin)where he found that there was not a sufficient link between the right to the enjoyment of a family life and settled accommodation. Dyson LJ (as he then was) refused permission to appeal in Dixon on the basis that, if Article 8 applied at all, part 6 of the Housing Act 1996 struck the required balance required by Article 8.
Art 8 may arise with regard to Part VII accommodation, but not the Part VI allocation scheme.
iii) Equality Act – failure to make reasonable adjustments & indirect discrimination.
The emphasis was on RR to establish a prima facie case, following which the burden of proof reversed for the defendant to show another explanation, or justification (where possible).
On reasonable adjustments, RR argued
that people with disabilities are put at a disadvantage as Enfield’s equality impact assessment recognises the government data on the high and rising proportion of people with disabilities who are waiting for social housing, with the allocation scheme providing that an applicant with a high Health and Wellbeing need being given 1000 points and one direct offer, and that those with a medium or low Health and Wellbeing need given additional points ( if they are not homeless or threatened with homelessness). The disadvantage to people with disability is said to be because all homeless household (regardless of disability) are, by virtue of the point system, channelled into non-secure accommodation and it is RR’s case that it would be reasonable to allow a household with a serious disability to gain additional priority over non-disabled people in the same homeless or threatened with homelessness cohort.
The Court held
The question of whether an adjustment is reasonable is an objective question for the court, bearing in mind all the circumstances of the case (see Dyson LJ in Royal Bank of Scotland v Allen (2009) EWCA Civ 1213). Even if RR were able to make out that his disabled household required an adjustment, in my judgment it would not be a reasonable adjustment in these circumstances to provide the disabled household with additional points as that would run counter to the allocation scheme that the local authority is entitled to have devised for the purpose of ensuring that those who have a high priority (as set out in the scheme and explained above) have access to housing. Those who are homeless or threatened with homelessness have rights pursuant to the provisions of Part 7 of the HA 1996. Any discriminatory affect caused by the allocation scheme not awarding Health and Wellbeing points (either because the Part 7 rights means that an applicant could not fall within the “high” category or because “low” and “medium” Health and Wellbeing points are not available to applicants who have points awarded as being Homeless or threatened with homelessness) is justified because the local authority can resolve the homeless person’s homelessness by making an offer of suitable accommodation under Part 7 of the HA 1996. The only adjustment would be to place a household with disability into the Health and Wellbeing category, but that would run entirely counter to the policy devised by the local authority which is a matter for the local authority to determine.
On indirect discrimination, RR could not show a prima facie case that households with a disability were placed at a particular disadvantage when compared with non-disabled household. The policy applied equally and there was no evidence that disabled households were disproportionately impacted.
iv) Breach of Public Sector Equality Duty
Enfield relied an equality impact assessment carried out during the introduction of the allocation scheme.
RR contended that Enfield had failed to monitor or record how many households owed the main housing duty were also households with disabilities, how many were in unsuitable accommodation or how long they waited to be rehoused in secure accommodation.
After the close of submissions, RR made reference to the EHRC report on issues faced by disabled households.
The Court held that, following R(DXK) v Secretary of State for the Home Department [2024] EWHC 579 (Admin), there was not a duty to monitor. However there was a duty of inquiry if the relevant information that could satisfy the authority that it had had due regard to the PSED aims was not available. The intensity of the review depended on context.
The EHRC report did not establish that there was a disproportionate impact on disabled households, but it did support the contention that Enfield “is failing to collect and analyse data relating to the impact of allocation decisions upon households with a disability and, in my judgment, Enfield has failed in fulfilling its PSED obligations in this respect.”
This judicial review challenge is therefore partially made out under Ground 7, namely the failure on the part of Enfield in fulfilling its PSED obligations under section 149 of the EA 2010 by its failure to both monitor and record statistics relating to the allocation of housing to disabled households. It is not accepted by Enfield that the PCP puts any group with a protected characteristic at any disadvantage, and it is Enfield’s case that in dealing with housing it is focussed on disability. What Enfield does not have is the data to support its position and the duty of inquiry is therefore not satisfied.
However, this breach did not give rise to a remedy for RR as Enfield’s decision would not have been different had it complied with its duty of inquiry. “Suitable accommodation has now been offered and accepted pursuant to the obligations of Enfield under part 7 of the HA 1996, and RR was always able to challenge the suitability of the accommodation provided by Enfield under those provisions.”
Claim dismissed.