Allocations Part 1: spent convictions and care leavers

Tuesday 30 August 2016

R (YA) v Hammersmith and Fulham London Borough Council [2016] EWHC 1850 (Admin), 27 July 2016. The claimant, YA, was a young person who had spent a number of years in the care of the defendant, Hammersmith and Fulham LBC. Between the ages of 12 and 15 YA had been convicted of a number of criminal offences including theft and fraud. At the age of 19, YA applied for an allocation of social housing under H&F’s allocation scheme.

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R (YA) v Hammersmith and Fulham London Borough Council [2016] EWHC 1850 (Admin), 27 July 2016

The claimant, YA, was a young person who had spent a number of years in the care of the defendant, Hammersmith and Fulham (H&F). Between the ages of 12 and 15 YA had been convicted of a number of criminal offences including theft and fraud.

At the age of 19, YA applied for an allocation of social housing under H&F’s allocation scheme.

The relevant provisions of the allocation scheme provided that applicants who had unspent convictions for housing or welfare benefits related fraud would not qualify for registration on the scheme until the qualification was spent. In addition, those who had been ‘guilty of unacceptable behaviour which makes them unsuitable to be a tenant’ would not qualify. Under the scheme H&F retained a discretion to waive these disqualifications in exceptional cases.

Separate to the allocation scheme, H&F also operated a ‘Care Leavers’ Quota’, whereby a quota of units of social housing were set side each year for the ‘most vulnerable of care leavers’. Under the quota, a care leaver who was deemed to be ‘sufficiently vulnerable’ by H&F’s Care Leavers Housing Panel, and who also met the requirements of the allocation scheme, would be nominated for an allocation of social housing from this quota.

The panel also retained a discretion to nominate care leavers who did not meet these criteria. In particular, in exceptional cases where the care leaver in question did not qualify under the allocation scheme but social housing was nevertheless deemed to be the most appropriate option, the panel could request the Director of Housing Options to waive the exclusions in the allocation scheme.

As a care leaver, YA’s application for an allocation came through the panel in accordance with the quota. Although YA was not assessed as being vulnerable, in the circumstances of his case it was deemed appropriate by the panel to nominate him on a discretionary basis.

In the course of reaching this decision the panel considered YA’s offending history and the fact he had made progress in disengaging with this behaviour and moving on with his life, and determined that he was suitable to be a tenant.

YA’s application was subsequently refused by the Director of Housing Options on the basis of YA’s offending history, which was said to disqualify him from an allocation of social housing under H&F’s allocation scheme.

YA sought judicial review arguing that it had been unlawful and contrary to s4(1) Rehabilitation of Offenders Act 1974 to have regard to his convictions, which were spent by this time, and that the decision resulted in indirect discrimination against him as a care leaver, contrary to Articles 8 and 14 ECHR.

It was accepted by H&F that YA’s convictions were spent and so should not be held against him. But the behaviour which led to those convictions was still said to be relevant to the question of whether YA was suitable as a tenant.

Peter Marquand, sitting as a Deputy Judge of the High Court, allowed YA’s claim on the first of these grounds.

H&F did not have any information before them relating to the behaviour underpinning YA’s convictions and so the only possible interpretation of H&F’s decision was that the existence of YA’s convictions had, impermissibly, been held against him.

In relation to the second ground, the judge accepted that Article 8 was engaged since the application of the allocation scheme impacted on YA’s private life and that being a care leaver amounted to ‘other status’ within the meaning of Article 14.

Further, the allocation scheme indirectly resulted in care leavers being treated less favourably than others, since (the evidence suggested) they were more likely to have criminal convictions or have behaved in a way that would disqualify them from the allocation scheme.

However, the discriminatory effect of the scheme fell within the margin of appreciation afforded to the state in matters of social welfare. Accordingly it was justified.

Click here for the judgment.

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