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Allocations: local lettings and undisclosed policies

5 July 2017, by Connor Johnston

Housing

Connor Johnston

R(C) v Islington London Borough Council [2017] EWHC 1288 (Admin), 31 May 2017

The defendant, Islington Borough Council, maintained an allocation scheme which provided that certain categories of people were excluded from joining the housing register, including those who had lived in the borough for less than three out of the previous five years. However, the scheme allowed for exceptions to be made. In particular, in respect of homeless applicants to whom a long-term housing duty under Part 7 Housing Act 1996 had been accepted.

The scheme operated on a points basis. Various points would be awarded for various features of an applicant’s case. For example, 100 points would be awarded to those who had lived in the borough for three out of the last five years. Those with less than 120 points were not eligible to bid for properties on the scheme.

The scheme also contained a ‘local lettings policy’ which had the effect that where homes were built on existing estates, priority would be given to those currently living on the estate when it came to allocating the new properties, and any left-over would then be allocated in accordance with the general provisions of the allocation scheme.

Similar provisions applied to other newly built social housing in the borough: households in the ward where the development was taking place would have priority, with the general population later being left to bid for any properties that were left over.

Two other elements of the scheme sought to give further preference to local residents. The first by reserving 20% of properties that were newly built or renovated as part of regeneration schemes to certain applicants who lived within the ward in which the regeneration was taking place. The second by prioritising 20% of void properties on estates to existing tenants on those estates who wished to transfer.

The claimant, C, was the mother of three young children aged between 2-9 years old. She was profoundly death and was a survivor of domestic abuse, at the hands of her husband. As a result of which in May 2015 she left the home where they had lived together, in the London Borough of Southwark, and was placed in a refuge in Islington. She then applied to Islington as homeless and, in due course, was accepted as being owed the main housing duty and provided with temporary accommodation in Islington.

C also sought an allocation of social housing, but was assessed as being entitled to 110 point only meaning that she was not eligible to bid for social housing on Islington’s scheme. Islington subsequently agreed to review the award of 110 points (which had been the subject of the challenge in R (Woolfe) v Islington London Borough Council [2016] EWHC 1907 (Admin)).

C then sought judicial review challenging the legality of the local lettings policy. The policy, it was argued, unlawfully discriminated against homeless people, victims of domestic violence (and therefore women), contrary to Articles 8 and 14 ECHR and ss19 and 29 Equality Act 2010. In addition, it was argued that the claimant had breached section 11 of the Children Act 2004 and s149 Equality Act 2010 in introducing and maintaining the policy.

During the course of proceedings, a psychological report was obtained on behalf of C from a clinical psychologist specialising in PTSD. The report was detailed, but the thrust was that, owing the C’s vulnerabilities and past experiences, she needed settled accommodation for her treatment to be effective.

In response, Islington obtained medical advice from Dr Keen and Dr Wilson of Now Medical stating that C’s current property was suitable and that ‘medical points do not apply’. In light of this, Islington declined to award C any additional points on medical or welfare grounds, taking the view that C’s temporary accommodation could be regard as sufficiently settled. C then amended her grounds of judicial review to challenge this decision also.

A further amendment to the grounds was sought during the course of the proceedings, following evidence being filed by Islington, arguing that Islington had in fact been allocating social housing to homeless persons in an undisclosed manner outside of the terms of the allocation scheme, c.f. R (Lumba) v SSHD [2011] UKSC 12.

Mr Justice Jeremy Baker held that:

The refusal to award 40 welfare points, to reflect the contention that C needed settled accommodation on welfare grounds, was not unlawful. Whether to award such points involved both an evaluative judgement and an element of discretion on the part of the local authority. And the use of the phrase ‘settled accommodation’ did not equate to Part 6 Housing Act 1996 accommodation, and was capable of encompassing Part 7 accommodation too. In reaching the decision that C’s current accommodation was settled and suitable Islington had considered all of the evidence and had reached a conclusion that was open to it on the facts.

The procedure adopted to consider applications by homeless persons was unlawful. It had emerged during the course of the hearing that Islington was allocating social housing by means of direct offers to some applicants who had accrued only 100 points. This practice was not incorporated in the scheme, which suggested that 120 points would be needed. This meant that C would have been entitled to be the subject of a direct offer. But there was nothing within the scheme to set out the criteria on which those offers were made meaning that C, and others like her, could not make a realistic application or know whether she was likely to succeed. As such, Islington’s practice in relation to direct offers was contrary to s166A(1) Housing Act 1996, since the relevant procedure was not contained within the allocation scheme, and unlawful on common law grounds.

The local lettings policy did not result in unlawful discrimination. Although the policy did result in differential treatment between those in analogous situations, that differential treatment was justified. In particular, prioritising local tenants for new accommodation did not act as a bar to those from outside of the area accessing accommodation because of the ‘churn’ effect, which meant that every time a local tenant moved to a new unit of social housing, an existing unit would be freed up which would be allocated in accordance with the general provisions of the scheme. And, in any event, the scheme contained a residual discretion to be used in exceptional cases to alleviate hardship.

Islington had adequately considered the equalities impact of the policy and the impact on children at the time the policy was formulated and had properly discharged its duties under s149 Equality Act 2010 and s11 Children Act 2004.

The full judgment is available: R(C) v Islington London Borough Council [2017] EWHC 1288 (Admin), 31 May 2017

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