Housing allocation

1. Housing allocation Christopher Baker

2. R (Ahmad) v Newham LBC [2009] UKHL 14; [2009] 3 All ER 755 “The court is in no position to rewrite the whole policy and to weigh the claims of the multitude who are not before the court against the claims of the few who are. Furthermore, relative needs may change over time, so that if the council were really to be assessing the relative needs of individual households, it would have to hold regular reviews of every household on the waiting list in order to identify those in greatest need as vacancies arose. No one is suggesting that this sort of refinement is required. It would be different, of course, if the most deserving households had a right to be housed, but that is not the law.” (Baroness Hale at [15], my emphasis.)

3. R (Ahmad) v Newham LBC [2009] UKHL 14; [2009] 3 All ER 755 “As a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies. Of course, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, it seems unlikely that the legislature can have intended that judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge.” (Lord Neuberger at [46], my emphasis.)

4. R (Ahmad) v Newham LBC [2009] UKHL 14; [2009] 3 All ER 755 “… [H]ow inapt it is for the courts to interfere with housing allocation schemes, save in clear and exceptional circumstances. This follows from the striking imbalance between supply and demand for housing, the very large number of families with an urgent need to be housed under Part VI of the 1996 Act, and the almost infinite number of different permutations of circumstances giving rise to the urgency. Knowledge of the circumstances of applicants generally, long term strategy considerations, expertise, political and social awareness, and local knowledge all have a part to play when it comes to formulating and implementing a housing allocation scheme. … [T]he court should be very slow indeed to second guess Newham.” (Lord Neuberger at [62], my emphasis.)

5. 2010 consultation Local decisions: a fairer future for social housing (CLG, November 2010) “We … intend to legislate to give back to local authorities the freedom to determine which categories of applicants should qualify to join the waiting list. In this way we will reverse the changes which were introduced by the 2002 Act.” (Para 4.8; my emphases.)

6. 2010 consultation Local decisions: a fairer future for social housing (CLG, November 2010, para 4.9, my emphasis) “We take the view that it should be for local authorities to put in place arrangements which suit the particular needs of their local area. Some local authorities might restrict social housing to those in housing need … Other local authorities might impose residency criteria or exclude applicants with a poor tenancy record or those with sufficient financial resources ... Others may decide to continue with open waiting lists. …”

7. Allocation of accommodation: guidance for local housing authorities in England (DCLG, 2012, ministerial foreword) “Under the previous Government housing waiting lists almost doubled, with many people languishing on waiting lists for years. That is why we have taken decisive steps to tackle this problem … “The new freedoms in the Localism Act which allow councils to better manage their waiting lists and promote mobility for existing social tenants came into force on 18 June. This guidance will assist councils to make full use of these new freedoms – and the existing flexibilities within the allocation legislation – to encourage work and mobility, and to tailor their allocation priorities to meet local needs and local circumstances.”

8. Housing Act 1996, s160ZA(6) “(6) Except as provided by subsection (1), a person may be allocated housing accommodation by a local housing authority in England (whether on his application or otherwise) if that person— (a) is a qualifying person within the meaning of subsection (7), or (b) is one of two or more persons who apply for accommodation jointly, and one or more of the other persons is a qualifying person within the meaning of subsection (7).”

9. Housing Act 1996, s160ZA(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.”

10. Providing social housing for local people (DCLG, 2013 guidance) The Secretary of State “strongly encourages all housing authorities” to include a residency requirement of at least 2 years as part of their qualification criteria (para 13).

11. R (Jakimaviciute) v Hammersmith & Fulham LBC [2014] EWCA Civ 1438; [2015] PTSR 822 “Homeless applicants placed in long-term suitable temporary accommodation under the main homelessness duty, unless the property does not meet the needs of the household or is about to be ended through no fault of the applicant. Long-term temporary accommodation can include private sector homes let via the council or a housing association under a leasing arrangement, and non-secure tenancies on regeneration estates.”

12. R (Jakimaviciute) v Hammersmith & Fulham LBC [2014] EWCA Civ 1438; [2015] PTSR 822 “The disqualification effected by para 2.14(d) is fundamentally at odds with the requirement under section 166A(3)(b) of the 1996 Act to frame a scheme so as to secure that reasonable preference is given to people who are owed a housing duty under one of the provisions of Part VII. The great majority of people within that class, far from being given any preference, are excluded altogether from consideration for housing accommodation under the scheme; and they are excluded for a reason that cannot sit with Parliament's decision to define the section 166A(3)(b) class as it did.” (Richards LJ at [47], my emphases.)

13. R (Jakimaviciute) v Hammersmith & Fulham LBC [2014] EWCA Civ 1438; [2015] PTSR 822 “(3) As regards priorities, the scheme shall … be framed so as to secure that reasonable preference is given to— (a) people who are homeless …; (b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) …; (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).

14. Other cases on qualification R (Alemi) v Westminster City Council [2015] EWHC 1765 (Admin); [2015] PTSR 1339 – unlawful suspension from bidding of s193 applicants R (HA) v Ealing LBC [2015] EWHC 2375 (Admin); [2016] PTSR 16 – unlawful exclusion of mother fleeing domestic violence on grounds of non-residence R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin); [2016] HLR 39 – unlawful exclusion of juvenile offender in reliance on spent convictions R (Tanriverdi) v Islington LBC CO/4072/2018 (pending)

15. R (XC) v Southwark LBC [2017] EWHC 736 (Admin); [2017] HLR 24 “Priority star” system within Bands, which included priority for working applicants and those undertaking voluntary activity. Allegation of indirect discrimination on grounds of gender and disability. Court held, applying Ahmad, that although the system was indirectly discriminatory against disabled people and women who were volunteer carers, Southwark had shown the scheme was a proportionate means of achieving a legitimate aim and had adopted the least intrusive measure possible and struck the right balance.

16. R (C) v Islington LBC [2017] EWHC 1288 (Admin); [2017] HLR 32 Challenges on grounds of discrimination to local lettings policies within scheme. Priority for existing social housing tenants over other applicants, such as the homeless and women fleeing domestic violence, for certain local lettings of eg new and refurbished accommodation. Court held indirect discrimination was justified and accordingly had not been unlawfully discriminatory for the purposes of art 14 and ss19 and 29 Equality Act 2010. The introduction of the local lettings policies had also complied with s149 Equality Act 2010 and s11 Children Act 2004.

17. R (H) v Ealing LBC [2017] EWCA Civ 1127; [2018] HLR 2 Reservation within scheme of 20% of lettings for working families and “model” existing tenants. Court of Appeal overturned almost all the findings of unlawfulness made by the Administrative Court. Indirect discrimination against people with disabilities, older people and women was not unlawful. The Judge’s attempted comparison of scheme with radically different schemes of other authorities was impermissible. At [129], Davis LJ endorsed the approach taken by Garnham J in the Southwark case (above).

18. R (KS) v Haringey LBC [2018] EWHC 587 (Admin); [2018] HLR 41 Mother had considerable mental and physical difficulties; 11 year old son had a heart condition and was carer for his mother and his sister; and 6 year old daughter had autism and no sense of danger. Court held not sufficient for children’s services to refer the family to the housing department and close the file, and that it had been irrational and in breach of s11 Children Act 2004 for housing services to decide that the family’s needs were moderate only and maintain their priority in Band C within their allocation scheme.

19. R (C) v Islington LBC [2016] EWHC 332 (Admin); [2016] HLR 19 Assessments by children’s services had pointed to the unsuitability of the existing accommodation for the severely autistic children. Court rejected challenge based on an alleged failure of the authority’s children’s services under s27 Children Act 1989 to have requested that housing services make a direct offer for a transfer to new accommodation. Although s27 did not apply to a single-tier authority, it was common ground that a similar power existed in general powers No failure of co-operation or planning between departments.

20. R (Z) v Hackney LBC [2019] EWHC 139 (Admin), 4 February 2019 Divisional Court held that it was lawful under the Equality Act 2010 for a small, charitable Orthodox Jewish housing association to operate a housing allocation system which had the effect of restricting tenancies of its properties to members of the Orthodox Jewish Community (OJC). One of the first cases on “positive action” under s158 and the “charities exception” in s193. System was proportionate, having regard to general housing crisis in London and needs etc of the OJC. Appeal pending.

21. R (Ward & Gullu) v Hillingdon LBC [2019] EWCA Civ 692, 16 April 2019 Travellers and refugee. 10-year local residence requirement. Conflicting decisions at first instance on same policy. S149 PSED claim successful: by time of 2016 policy change, Hillingdon aware of Gullu’s challenge and should at least have considered position of non-UK nationals. Claims of indirect discrimination successful up to a point. Hillingdon had not attempted to justify the indirect discrimination, as opposed to seeking unsuccessfully to show negative effect on protected groups had been overcome. As it was still open to Hillingdon to justify the discrimination, the relief granted in Ward was limited to reflect that.

22. R (TW) v Hillingdon LBC (No 2) [2019] EWHC 157 (Admin), 8 February 2019 Hillingdon’s review of the impact of 10-year residence qualification on Irish travelers. Court held that Hillingdon had presented insufficient evidence to justify indirect discrimination.

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