Allocation: reduced priority for overcrowded private sector tenants not unlawful

Friday 31 March 2017

R (Osman) v London Borough of Harrow [2017] EWHC 274 (Admin), 21 February 2017.

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R (Osman) v London Borough of Harrow [2017] EWHC 274 (Admin), 21 February 2017

The Claimant, O, lived in a privately rented one-bedroom flat, together with her husband and four young children, in the area of Harrow. The flat was seriously overcrowded. O’s eldest child had an allergy and skin condition which were exacerbated by the family’s living conditions.

O sought an allocation of social housing from the Defendant, Harrow London Borough Council. O was initially placed in band A, the second highest band on Harrow’s allocation scheme. But, in December 2015, following amendments to the scheme, she was moved down to band C.

The relevant amendments had reduced the priority accorded to tenants living in overcrowded privately rented accommodation, who were in need of two or more additional bedrooms. The rationale for the amendment was that those falling within this group could resolve their situation much more quickly by obtaining alternative accommodation in the private sector, which was not something that overcrowded tenants in social housing could reasonably be expected to do.

In a report which preceded the amendments it was suggested that some families in overcrowded private sector accommodation were deliberately choosing to live in overcrowded conditions for many years in the belief that it would ‘facilitate an offer of social housing’.

Following the decision to move O to Band C, she was informed that it was unlikely that she would be made an offer in the near future. Harrow did offer to assist O by means of financial support to fund a deposit for larger accommodation in the private sector. But O was unable to make use of this offer since she could not find an appropriate landlord who was willing to accept housing benefit.

O sought to challenge the amended scheme arguing that it unlawfully discriminated against tenants living in overcrowded conditions in the private rented sector, contrary to Articles 8 and 14 ECHR. Robin Purchas QC, sitting as a Deputy Judge of the High Court, dismissed her application. The scheme resulted in differential treatment as between two groups in analogous circumstances. But that differential treatment was justified for the reasons put forward by Harrow.

Click here for the judgment.

Comment:

Any Claimant seeking to challenge the legality of a local authority allocation scheme post the House of Lords decision in R (Ahmad) v London Borough of Newham [2009] UKHL 14, [2009] HLR 31 [2009] UKHL 14, [2009] HLR 31 has faced an uphill struggle. And this is no less true where the basis of the challenge is that the scheme in question results in discrimination contrary to the ECHR.

This is an area where the courts will generally accord a significant degree of deference to local authority’s policy choice. This particular case may simply be seen as an illustration of these principles. Nevertheless, the court’s treatment of two particular issues raises concerns.

First, the preparedness of the judge to accept that families were deliberately living in unsuitable, overcrowded accommodation to the detriment of their children in order to boost their chances of getting a council property. On the face of it, this seems unlikely and the evidential basis for this point (save for a generalised reference to the policy makers having received advice from housing officers) is not clear from the judgment.

Second, is the judge’s dismissal of the difficulties faced by those in receipt of housing benefit/Universal Credit, in trying to find a landlord in the private sector who is willing to accommodate them. In relation to this, the judge said at [71] that:

…the difficulties in obtaining a private sector tenancy as a person in receipt of benefits which the Claimant says that she experienced in 2015 were not included in the matters put forward to support review in the letter dated 27th January 2016. Moreover that evidence is unparticularised and there is no evidence that it was representative of the private rental market generally. [Emphasis added]

Anecdotally, the difficulties of trying to find a private landlord who will accept housing benefit are well known. Indeed, (increasingly dated) adverts for accommodation stating ‘no DSS’ can still occasionally be seen in flat windows, illustrating the long standing nature of the problem.

More concretely, a survey conducted by the Royal Institution of Chartered Surveyors (reported in Inside Housing) indicates that housing benefit claimants are being pushed out of the private sector since the introduction of the new lower benefit cap. This is distinct from, but related to, the further problem that private rented accommodation will be unaffordable for many in these circumstances, particularly following the revised benefit cap. A problem which Shelter (among others) is on top of. See their blog post here and excellent article for the New Statesman here.  Should this case go to the Court of Appeal, it is to be hoped that these issues will be subject to rather closer scrutiny.

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