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Social Welfare Update: Council misapplied its Allocation Scheme by treating a “preference” given to families with children as an automatic decision in their favour

Friday 26 February 2021

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The Claimant lived with her three adult children, one of whom (Zakiya) had cerebral palsy and learning difficulties. Due to her disabilities, Zakiya needed to live in a property with various adaptations, including a level-access shower, access to stairs with bilateral handrails, and (preferably) a downstairs toilet. 

The Defendant allocated social housing accommodation via a choice-based lettings system, pursuant to which applicants could bid online for properties. Although the Claimant was near the top of the list, she kept being informed that her bids had been “skipped” because she had no dependent children. 

The Defendant’s Scheme 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.

The Defendant’s position, as explained in pre-action correspondence, was that where the available property was a house, it would be only be if “no one was found on the bid list with dependent children” that it would be offered to an applicant such as the Claimant (para 21). This left the Claimant in a Catch-22 position whereby she “was only entitled to bid for properties which met her daughter’s disability needs but, whenever she did so, she found that her bid was 'skipped' because the property was a house and Council officers considered that they were obliged to give priority to a family with children under the age of 18 in preference to a family who had a seriously disabled daughter who needed constant care but was over the age of 18” (para 17).

The Claimant lodged an application for judicial review.  The first ground alleged that:

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

The following three grounds argued that the Allocation Scheme itself was unlawful.

There then followed a series of serious procedural failings by the Defendant.  As described by the Judge (para 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.

Shortly before the final hearing, the Claimant accepted a final offer of accommodation from the Defendant.  The Defendant then invited the Claimant to withdraw her claim.  This invitation, the Judge stated (para 33):

…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.

The Claimant did not withdraw her claim.  However, as a result of the Defendant’s failure to comply with the directions, the Court was only in a position to determine Ground 1 of the claim at the final hearing.  This ground was upheld. 

The Defendant had misapplied its policy.  Correctly interpreted, the Scheme provided for a preference to be given to families with dependent children when allocating a house, but that certain types of properties (such as sheltered housing and adapted properties) would be allocated to specific groups (the elderly and disabled people respectively). Not only was this interpretation consistent with the wording of the policy (paras 58 and 61), but “it would be nonsensical to interpret the policy in a way that gave preference to allocating house [sic] within sheltered housing to a family with children when such a development is specifically intended to benefit older persons” (para 59). In addition, “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” (para 60). Whilst the Defendant was correct in its submission that the Scheme gave families with children a head start in being considered for a house, this was not how the policy had been operated by its officers: instead, they had (wrongly) treated the presence of children as “mandating them to allocate a house to a family with children over other applicants” (para 63).  Furthermore, the Scheme was flawed because it did not explain what degree of weighting would be given to families with dependent children.

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