[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWHC 1288 (Admin)
||Case No: CO/4106/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||31 May 2017
B e f o r e :
MR JUSTICE JEREMY BAKER
|| R (on the application of C)
||- and -
||The London Borough of Islington
Mr Ian Wise QC and Mr Michael Armitage (instructed by Hopkin Murray Beskine) for the Claimant
Mr Christopher Baker and Mr Richard Granby (instructed by The Legal Department, London Borough of Islington) for the Defendant
Hearing dates: 2 and 3 February 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Jeremy Baker:
- In many parts of England and Wales there is an imbalance between the supply and demand for social housing. This is particularly acute in many of the London boroughs, including the London Borough of Islington, (hereinafter "the defendant"), where the supply is far outstripped by the demand for this type of housing accommodation. Inevitably, in these circumstances, local housing authorities can face difficult decisions when seeking to allocate social housing in a fair and appropriate manner.
- Part VI of the Housing Act 1996, as amended, (hereinafter "the 1996 Act"), makes provision for the allocation of social housing, and section 159(1) obliges local housing authorities to comply with those provisions. However, subject to those provisions, subsection (7) makes it clear, that a local housing authority may allocate this type of housing accommodation in such manner as it considers appropriate.
- In addition, local housing authorities owe various statutory duties to homeless individuals within their area, under Part VII of the 1996 Act. If the local housing authority is satisfied that an individual is homeless, eligible for assistance, has a priority need, and is not satisfied that he became homeless intentionally, then, under section 193(2), it is under a duty to secure that accommodation is available for occupation by him.
- However, just as there is no statutory duty to provide an applicant with social housing under Part VI of the 1996 Act, likewise, there is no statutory duty to provide social housing to a homeless individual; albeit, section 166A(3)(a) obliges a local housing authority to frame its allocation scheme so as to secure that reasonable preference is given to people who are homeless. Therefore, unless the local housing authority decides to accommodate a homeless person by providing her with social housing, its duty is limited to securing that accommodation is available for occupation by her.
- As social housing is, in general terms, let either under the secure tenancy provisions of the Housing Act 1985, or the assured tenancy provisions of the Housing Act 1988, it is understandably perceived, by those seeking to be accommodated by a local housing authority, to be the gold standard, whilst accommodation provided under Part VII, is considered to be second best.
- Inevitably, because of the imbalance between the supply and demand of social housing, those who are accommodated under Part VII of the Housing Act 1996 may spend prolonged periods in such accommodation, which can lead to disputes in relation to the allocation of social housing. This case concerns one such dispute.
Housing Act 1996
- Section 166A(1) of the 1996 Act provides that, in England, local housing authorities must have an "allocation scheme" for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. Moreover, subsection (14) obliges local housing authorities to follow their schemes when allocating housing accommodation.
- The other provisions of the 1996 Act which are of relevance to this case are as follows:
"Section 166A Allocation in accordance with allocation scheme: England
(2) The scheme must include a statement of the authority's policy on offering people who are to be allocated housing accommodation
(a) a choice of housing accommodation; or
(b) the opportunity to express preferences about the housing accommodation to be allocated to them.
(3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any authority under section 192(3);
(d) people who need to move on medical or welfare grounds (including any grounds relating to disability); and
(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a person and the authority's district.
(6) Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation
(a) to a person who makes a specific application for that accommodation;
(b) to persons of a particular description (whether or not they are within subsection (3)).
(9) The scheme must be framed so as to secure that an applicant for an allocation of housing accommodation
(a) has the right to request such general information as will enable him to assess
(i) how his application is likely to be treated under the scheme (including in particular whether he is likely to be regarded as a member of a group of people who are to be given preference by virtue of subsection (3)); and
(ii) whether housing accommodation appropriate to his needs is likely to be made available to him and, if so, how long it is likely to be before such accommodation become available for allocation to him;
(b) has the right to request the authority to inform him of any decision about the facts of his case which is likely to be, or had been, taken into account in considering whether to allocate housing accommodation to him; and
(c) has the right to request a review of a decision mentioned in paragraph (b), or in section 160ZA(9), and to be informed of the decision on the review and the grounds of it.
Section 168 Information about allocation scheme
(1) A local authority shall publish a summary of their allocation scheme and provide a copy of the summary free of charge to any member of the public who asks for one.
(2) The authority shall make the scheme available for inspection at their principle office and shall provide a copy of the scheme, on payment of a reasonable fee, to any member of the public who asks for one.
Section 169 Guidance to authorities by the Secretary of State
(1) In the exercise of their functions under this Part, local authorities shall have regard to such guidance as may from time to time be given by the Secretary of State.
(2) The Secretary of State may give guidance generally or to specified descriptions of authorities."
The defendant's allocation scheme
- The defendant's current allocation scheme is its, "Housing allocation scheme 2015", (hereinafter "the 2015 scheme"). In the introduction, it explains the defendant's duty to give reasonable preference to certain categories of people, under section 166A(3) of the 1996 Act.
It also states under the sub-heading "Equalities" that,
"The council serves a diverse community, and is committed to meeting the needs of that community in the provision of housing allocation, by working in partnership with other housing providers.
The council will ensure that customers are treated fairly and equally, and that when allocating housing, ensure that the allocation policy does not discriminate against any particular group.
The implementation of a clear and consistent allocation scheme goes hand in hand with careful equalities monitoring. The data collected is used to ensure that the scheme is being operated in a fair and non-discriminatory manner, as well as for the purpose of regular equality impact assessments and subsequent improvements to service delivery.
Under the sub-heading "Discretionary powers" it states that,
"The allocation scheme cannot cover every eventuality. In special cases with exceptional needs, the Service Director for Housing Needs and Strategy has discretionary power to award additional priority and approve offers of housing, taking into consideration all factors relevant to housing and social needs."
- Chapter 1 of the 2015 scheme, headed "Housing Register", states that whilst any person may apply to join the housing register, certain categories of people will be excluded, including those who have lived in Islington for less than three out of the previous five years from the date they apply for housing. However, it states that exceptions may be made, including applications from those who are homeless for whom the defendant has accepted that it has a long-term rehousing duty under Part VII of the 1996 Act.
- The 2015 scheme goes onto explain that applicants are given points for housing need factors, which are cumulative in nature, and those with less than 100 points will not be included on the housing register. It then goes on to explain the factors for which points are awarded, together with the number of points awarded for each factor, which include:
i. 100 "Residence points" to everyone who has been resident in the borough for three out of the last five years.
ii. "Waiting time points" at the rate of 5% per year based upon the total number of points awarded to the applicant.
iii. Between 40 150 "Medical points" may be awarded if the defendant considers that, "
.an applicant or a member of their households accommodation is unsuitable because of a medical condition." The number of medical points being dependent upon, "
. the household's health and the severity of the conditions in their home."
iv. 40 "Category C" points, "
is for households where a member of the household's current housing conditions are having a moderate or variable effect on their medical condition. It will not apply where the effect of the housing conditions on health is slight."
v. Between 40 150 "Welfare points", "
. may only be given where housing or other circumstances severely affect the welfare needs of the applicant or a member of the household. Where there is welfare or social issues, these will be assessed by either the council's medical advisor or senior officers."
vi. 150 "Category A" welfare points, "
. may be awarded to applicants whose welfare needs are so severe that the protection of vulnerable adults or children is only possible in a permanent home and where the present housing circumstances could deteriorate to such an extent as to place family members, particularly children, at risk or in need of residential care unless permanent housing is offered." It is stressed that category A points will rarely be awarded, less the rehousing of the most vulnerable people is delayed, but provides examples of situations in which such an award may be made, which include, "Where it is necessary to move because of the threat of violence or harassment, including domestic and sexual violence."
vii. 40 "Category C" welfare points, ".
. may be awarded to applicants whose welfare needs are "comparable to the following", which includes, "The applicant's household includes someone with a need for settled accommodation on welfare or medical grounds who cannot be reasonably be expected to find accommodation for themselves in the near future."
Under the heading "Homelessness - Statutory homeless applicants" it is stated that,
"Ten points may be awarded to people who are living in insecure accommodation and are threatened with homelessness or are homeless but are not living in temporary accommodation provided by the council.
Applicants to whom a duty is owed under the Housing Act 1996 will be placed on the Housing Register.
Homeless applicants in temporary accommodation will not be awarded any points unless they fall under one of the following criteria:
- 100 points will be given to homeless applicants (where the council has accepted a housing duty) in properties where the lease is about to expire and who cannot be found comparable alternative temporary accommodation. These points are to be given once it is clear that actual eviction is to take place and to remain until the applicant is either housed or placed into further long term temporary accommodation, whichever is the earliest.
- Homeless families (where the council has accepted a housing duty) in bed and breakfast, or in shared annexes for more than six consecutive weeks from the date of placement and who cannot be found suitable self-contained temporary accommodation will receive 100 points. This does not include families placed in council owned reception centres.
- 70 points will be given to single homeless applicants assessed as needing studio or 1 bedroom accommodation, where the council has accepted a full housing duty.
The way the defendant operates the allocation scheme is set out as follows:
- Where the council has discharged its duty under part VII it may allow households not residing in Islington to apply on the housing register and be awarded residence points."
"Choice based lettings
Islington Council operates a choice based lettings scheme (CBL) called Home Connections. As far as possible all council, housing association, co-op managed and tenant management organisation (TMO) properties are organised through this scheme. There are exceptions such as sheltered housing.
The council may operate supported choice lettings to any applicant or group of applicants. Where supported choice based lettings are made an applicant will be given access to the choice based lettings system for a minimum of four weeks, if they are not successful within this time they will be given a choice of two properties based on their assessed needs for accommodation.
Failure to accept one of the two offers may result in points being removed from an applicant's application, or in the case of a homelessness application the council discharging its duty.
In certain circumstances the council may make a direct offer of accommodation outside of the CBL system to applicants who have been unsuccessful at bidding.
Who can bid?
The council will set thresholds for the points above which applicants will be eligible to bid and may set annual quotas for applicants in local priority categories
Applicants not bidding
Homeless applicants who have sufficient points may be made a direct offer of suitable housing in any area. If they refuse the offer the council's duty to them can be ended.
Although the document in which the scheme is set out does not specify the threshold above which an applicant would be eligible to bid for social housing under the allocation scheme, this information was available from the defendant, which has determined that the applicable threshold is 120 points.
The 2015 scheme also provides for a local lettings policy in the following manner,
"Islington council new homes local lettings policy
New homes on estates
The council is committed to ensuring that its new homes are meeting the needs of the local community. We will therefore introduce a local letting policy for all the homes we construct on existing estates that will prioritise the lettings of the new homes to people currently living on the estate on which they are being built.
- This will apply to either current tenants or family members living with the tenants for the last 12 months.
- The local lettings policy will apply to those households living on the estate where the development is taking place.
- Those households who are in housing need (over 120 points) will be able to apply for the new homes before anyone else in the borough.
- The person with the highest points from the estate will be offered the property.
- Under-occupiers will be able to apply for an extra bedroom but for other applicants they must fulfil the size requirements for the new homes.
- Wheelchair adapted properties will be restricted to people who require such properties.
- Ground floor properties will be restricted to people with an assessed need for ground floor accommodation.
Once the people in need have been allocated homes, the properties will be reserved for tenants on the estate, who wish to move into a property of the same bedroom size as their existing property, unless they are under-occupying by more than one bedroom. The tenant who has had a tenancy in their name at their current address for the longest will be offered a property.
Remaining properties will be let according to the council's housing allocation policy.
Other new homes
Islington Council wants to make sure local people benefit from new social housing.
We are therefore introducing a local letting policy for all newly built homes for social rent that mirrors our existing policy for new council homes on existing council estates.
New build homes for social rent will prioritise the lettings of the new homes to people currently living in the ward in which they are being built.
- This will apply to either current social housing tenants or family members living with the tenants for the last 12 months.
- The local lettings policy will apply to those households living in the ward* where the development is taking place.
- Those households who are in housing need (over 120 points) will be able to apply for the new homes before anyone else in the borough.
- The person with the highest points from the ward will be offered the property.
- Applicants they must fulfil the size requirements for the new homes.
- Wheelchair adapted properties will be restricted to people who require such properties. Ground floor properties will be restricted to people with an assessed need for ground floor accommodation.
Remaining properties will be let according to the council's housing allocation policy.
*If the development is part of an area which crosses more than one ward, the Service Director of Housing Needs and Strategy can exercise discretion to include more than one ward in the local lettings allocation
Where new or renovated accommodation is provided as part of a regeneration scheme, the council may decide to reserve 20% of the available properties for applicants who live in the same ward area and are eligible to bid on the Home Connections scheme. In some cases, tenants who moved away from the area as a result of the regeneration programme may also be included. These properties will be advertised in Home Connections. Where a special lettings plan has been applied to a development this will be included in the property advert.
The aims of this approach are:
- to assist residents to maintain and develop on-going connections with the area and contribute to the sustainability of the community
- to help address overcrowding and under-occupation within the local community.
- Community lettings schemes are approved by the Service Director for Housing Needs and Strategy.
The types of schemes to be included:
- a group of properties available for letting at the same time will be identified as being suitable for community lettings. Usually these will be newly built housing association properties located in regenerated areas within the borough
- for 20% of available properties priority will be given to applicants living in the same ward with the rehousing points to bid for accommodation. Applicants will then be short-listed in the normal way.
- special lettings plans that give priority to applicants living in specific blocks, estates, or localities may be agreed at the planning stage and will be implemented at the allocation stage.
- Homes adapted for wheelchairs are generally excluded from these schemes.
The aim of this initiative is to enable tenants who want to stay on the estate to remain there.
20% of all available void properties on estates will be prioritised to tenants on the particular estate who are eligible to bid and who would like to be housed within the estate. Applicants will then be short-listed in accordance with the allocation policy."
The circumstances giving rise to judicial review
The claimant is the mother of three children, E, F and J, who are 9, 4 and 2 years of age respectively. She is profoundly deaf, and, prior to May 2015, was living with her husband, who is also profoundly deaf, in the London Borough of Southwark. Whilst they were living together, the claimant was subjected to both emotional and physical violence by her husband, to the extent that she decided to leave the matrimonial home with her three children, and, with the assistance of a charity known as DeafHope, moved into a refuge in the London Borough of Islington, operated by another charity known as Solace Women's Aid.
The claimant made an application to the defendant for assistance, and, after some delay and the intervention of those instructed by the claimant, the defendant wrote to her on 21st October 2015, stating that it accepted that she was homeless, that she was not homeless intentionally, that she was in priority need, and eligible for assistance. In those circumstances, the defendant, having accepted that the claimant was owed what is sometimes known as the full housing duty, was obliged to secure that accommodation was available for her occupation under section 193(2) of the 1996 Act.
Initially, the defendant provided accommodation outside its district, in the London Borough of Hammersmith and Fulham. However, in April 2016, the defendant provided 3-bedroom accommodation within its district, which is where the claimant continues to reside, together with her three children.
At the same time that the defendant accepted its obligations under section 193(2), the defendant wrote separately to the claimant on 21st October 2015, stating that it had assessed her under its allocation scheme, and that it had determined that she was entitled to 110 points, being 100 residence points and 10 homeless points, (albeit, the letter placed these the other way around).
The letter went on to state that although the claimant's "homeless application" had been accepted, because of the imbalance between the supply and demand of social housing in Islington,
. while we will help you find somewhere to live it will probably not be a council flat. However the council will secure a suitable home for you and your family. This will be
"leased accommodation" a home with a private landlord for a fixed amount of time, usually three years but can be up to five years.
If you move into leased accommodation when your lease ends we will still help you find a home. It is likely that we will aim to extend your lease with the same private landlord.
If the council is unable to extend your lease we will aim to find you another long term lease accommodation."
Although the letter does not state in terms that, because the claimant had only been awarded 110 points, she was ineligible to bid for social housing under the defendant's allocation scheme, the accommodation which has been provided to the claimant and her children is of the nature described by the defendant in its letter, namely leased accommodation, provided under arrangements which the defendant has made with a private landlord.
Whilst the claimant moved into the accommodation provided by the defendant, those instructed on her behalf challenged both the award of only 110 points under the scheme, and the lawfulness of the allocation scheme itself. The latter challenge was essentially twofold. Firstly, that the points threshold is unlawful, in that it fails to provide reasonable preference to those entitled to it, under section 166A(3) of the 1996 Act. Secondly, that the local lettings policy within the scheme, unlawfully discriminates against homeless people, victims of domestic violence and therefore women, contrary to Article 14 read with Article 8 European Convention on Human Rights, sections 29 and 149 of the Equality Act 2010, and is also a breach of section 11 of the Children Act 2004.
On 21st July 2016 those instructed on behalf of the claimant commenced judicial review proceedings against the defendant. As the defendant had undertaken to review its decision to award only 110 points to the claimant, and the lawfulness of the points threshold has been resolved (subject to an outstanding appeal) in favour of the defendant, by Holman J. in R (Woolfe) v Islington LBC  EWHC 1907 (Admin), the grounds of challenge were limited to the lawfulness of the local lettings policy.
On 26th October 2016, following the defendant's acknowledgement of service, and other pleadings, permission for judicial review was granted by Jefford J.
In the meantime, those instructed by the claimant had commissioned a psychological assessment report concerning the claimant from Dr Jacqueline Gratton, who is a clinical psychologist, specialising in post-traumatic stress disorder, (hereinafter "PTSD").
The report is dated 11th October 2016, and Dr Gratton had been asked to provide her opinion on a number of issues, including,
"Can you consider the impact of the traumas she has experienced from domestic violence from her husband and any other difficulties you found in your assessment. In particular what are the implications, if any, to be considered when assessing her need for settled housing? Does she have an enhanced need for settled accommodation, for example in order for her to start to address the impact of trauma, does she need a settled home?"
Dr Gratton noted that because of her hearing disability, although the claimant was able to cook and manage the day to day care of both herself and her children, she had difficulties coping with more complex tasks such as food shopping, accessing locations outside the home, and managing her finances. In regard to these type of tasks, not only did she rely upon her eldest daughter, but, in particular, needed the services of DeafHope.
Dr Gratton was of the opinion that, because of the emotional and physical violence inflicted upon her by her husband, the claimant suffers from moderately severe PTSD and depressive disorder. Dr Gratton stated that without treatment for her mental health difficulties, the claimant would be vulnerable to symptoms associated with her PTSD and depressive disorder, which may adversely affect the children's emotional development.
Dr Gratton described the treatment which was required as being a lengthy process, which would entail psychological intervention in three phases, and would be complicated by the need for a British sign language interpreter. She said that the first phase would involve stabilisation of life circumstances and symptoms, the second phase would involve cognitive behaviour therapy, and the third phase would be reintegration in the community in order to reduce her fear of being in public places, developing improved close relationships, and engagement in interests.
Dr Gratton pointed out that in the first phase, ideally housing and financial issues should be resolved so that, the stress from these does not contribute to the symptoms which she is suffering, and the claimant has a sense of safety prior to the treatment commencing. Dr Gratton also pointed out that if, whilst undergoing treatment, the claimant was moved out of the commissioning General Practitioner's area, then the treatment is at risk of being brought to an end, with consequential delays in obtaining alternative funding from a new General Practitioner.
In relation to the specific question posed by those instructed on behalf of the claimant, Dr Gratton stated that,
"The combination of the lengthy process which involves treatment of PTSD and depression and [the claimant's] sensory impairment and daily functioning difficulties, have implications for the need for permanent housing. Any house move involves, for example, re-organising of bill payment, nursery and school places, childcare, GP registrations, liaising with landlords and finding new routes. All of which would be a very demanding process for [the claimant] both emotionally and practically and she requires assistance for every step. Any friendships she has developed with individuals living nearby would be difficult to maintain and less practically helpful and she would be completely socially isolated. Even if she is moved within borough, these difficulties would be highly likely to interfere with therapy and cause it to be paused. This would be ill-advised once an individual has begun the second phase of the trauma intervention involving detailed re-living of the worst moments of their experience. This leads to temporary increase in symptoms such as flashbacks and nightmares and therefore should not be interrupted. Further, the increase in social isolation is negatively associated with prognosis
If [the claimant] were to receive permanent housing and engage in the treatment described above then I would expect a significant improvement in her mental health."
Dr Gratton also considered that, because of both her disability, and the effects of her mental health difficulties, the claimant would have difficulties in entering into any necessary negotiations with a private landlord.
Following receipt of this report the defendant commissioned its own medical evidence from Dr Keen and Dr Wilson, who provided three short reports dated 28th October 2016, 17th November 2016 and 18th November 2016. In the first of these reports Dr Wilson did not consider that the claimant was significantly vulnerable on mental health grounds alone. Moreover, although Dr Keen considered that because of her hearing disability, the claimant was significantly vulnerable, he concluded in the latter report that,
"The current accommodation a self contained three bedroom property located on the first floor with a single flight of internal stairs appears suitable on specific medical grounds. Medical points do not apply."
On 24th November 2016, the defendant wrote to the claimant providing its response to the review of its decision concerning the award of points under the 2015 scheme, and confirmed that it would only award 110 points to her. In relation to the award of medical points, the defendant stated that,
"I consider that the current property does not have an effect on your client's medical condition and there are no expected benefits from a move to an alternative property, therefore, the criteria for Category C medical points are therefore not met and I am unable to award a medical priority in this instance."
The defendant also declined to award any welfare points, stating that,
"I have considered whether the criteria for Welfare Category C are met. Your client is living in suitable temporary accommodation provided by this authority. This authority has a long-term ongoing obligation to house your client and will continue to provide settled temporary accommodation to her and her household."
Following receipt of this letter, those instructed on behalf of the claimant sought to amend the grounds of judicial review, and challenge the defendant's refusal to award the claimant 40 Category C welfare points under the 2015 scheme.
On 6th December 2016, a consent order was made allowing the amendment to the grounds of challenge, and ordering that permission would be considered at the same time as the determination of the grounds for which permission had already been granted, in a "rolled-up" hearing.
In the course of the litigation, witness statements have been provided by the claimant dated 6th June 2016, and by Karen Lucas, Head of Housing Needs, on behalf of the defendant dated 11th July 2016 and 5th December 2016, and by Cora Nicholls, Housing Options Manager, on behalf of the defendant dated 8th December 2016. Thereafter, the parties have applied to introduce further witness statements, namely a witness statement by Polly Neate, Chief Executive of the Women's Aid Federation of England, on behalf of the claimant, and by Karen Lucas, on behalf of the defendant dated 26th January 2017.
The most recent witness statement from Karen Lucas, seeks to deal with the way in which applicants who have suffered from domestic violence are dealt with by the defendant, and to clarify the statistics which had previously been provided in relation to the impact of the local lettings policy upon female applicants. In relation to the first of these issues, Karen Lucas states that,
"Within the Scheme, in general, however, victims of domestic violence are likely to have presented to Islington as homeless applicants under Pt 7 and they are prioritised accordingly. The method by which homeless applicants in general are allocated property under the Scheme is, in practice, different from that for the large majority of other applicants who seek and receive offers through the Choice Based Lettings system and its bidding process. In contrast, allocations to homeless applicants (which in 2015 16 accounted for 344 of 1,172 allocations, or 29% overall) were very largely made by way of direct offers (128 allocations) or supported choice (184 allocations). The former involve a property selected for the applicant by Islington, without any bidding; under the latter, an applicant is given 4 weeks to bid but if not successful within that period is then given a choice between 2 suitable properties. Accordingly, in 2015 16, only 32 allocations to homeless applicants were the result of the usual bidding process common to other applicants."
This evidence has prompted those instructed on behalf of the claimant to seek to further amend the grounds of judicial review. It is stated that on the basis of the statistics provided by Karen Lucas, about 91% of properties allocated to homeless applicants under the 2015 scheme, were allocated outside the choice based lettings system (37% being allocated after direct offers had been made to the applicants, whilst 54% were allocated through supported choice). Moreover, that not only was this not a matter which had previously been disclosed by the defendant, but it was not ascertainable from the 2015 scheme. It is submitted that the manner in which the defendant seeks to allocate social housing to homeless applicants is unlawful, in that it is contrary to its statutory duties under the 1966 Act; to have a scheme as to the procedures to be followed in allocating housing accommodation (section 166A(1)); to adhere to it (section 166A(14)), and; to enable the claimant to effectively exercise her right to seek information as to how her application is likely to be treated under the scheme (section 166A(9)(i)). Moreover, that because the defendant was allocating social housing to homeless applicants in an undisclosed manner, outside the terms of the 2015 scheme, it was unlawful per R (Lumba) v SSHD  UKSC 12.
Therefore, there are essentially three grounds of challenge in this case, namely: the unlawful refusal to award 40 Category 3 welfare points under the 2015 scheme; the unlawful procedure adopted by the defendant to its consideration of applications by homeless persons, and; the unlawfulness of the local lettings policy. It seems to me that each of the grounds can be dealt with discretely from one another, and I propose to deal with them in that order.
Ground relating to the alleged unlawful refusal to award 40 category C welfare points under the 2015 scheme
The submissions advanced on behalf of the claimant are threefold:
i. that if there is sufficient evidence to establish that an applicant's household includes someone with a need for settled accommodation on welfare or medical grounds, and that person cannot reasonably be expected to find accommodation for themselves in the near future, then the defendant is obliged to award the applicant, 40 category C welfare points;
To be in a position to properly consider the first of these submissions, it is necessary to have regard, not simply to the particular words relied upon by the claimant, but to that part of the 2015 scheme which deals with the awarding of welfare points in general. In this regard, the first paragraph makes it clear that welfare points,
ii. that as the evidence of Dr Gratton is sufficient to establish that the claimant fulfils these two criteria, she is therefore entitled to be awarded 40 category C welfare points, under the 2015 scheme, and;
iii. that, in the context of a points based housing allocation scheme, the term, "settled accommodation", must be a reference to social housing; such that the defendant's assertion, that the claimant is already in "settled accommodation", is wrong, and renders its decision, which is based upon this error, unlawful (per R(Lumba) v SSHD (supra)).
. may only be given where housing or other circumstances severely affect the welfare needs of the applicant or a member of their household.", (my underlining).
Furthermore, not only is it clear, from the use of the word, "may" under each of the category heads, including category C, that the defendant retains a discretion as to whether to award such points, but the use of the word, "comparable", suggests that the defendant is essentially undertaking an evaluative task when it considers whether to award category C welfare points.
In these circumstances, whilst I accept that any decision to refuse to award such points to an applicant who appeared to fulfil one of the provided examples would have to be scrutinised with care, to see whether there was sufficient reason to justify the refusal, I do not consider that the 2015 scheme provides an obligation on the defendant to award such points. Furthermore, I consider that in carrying out the evaluative exercise, the defendant is obliged to have regard to the requirement for the housing or other circumstances to have a severe effect upon the applicant's or other's welfare needs.
Before considering whether the defendant was entitled to refuse to award 40 category C welfare points, it is necessary to determine the issue concerning the meaning of "settled accommodation" within the 2015 scheme, namely whether, as the claimant submits, it necessarily refers to the provision of social housing under Part VI of the 1996 Act.
The term "settled accommodation" is not a statutory term, but has arisen in a series of cases concerning the ability of an individual, who has been intentionally homeless, to break the chain of causation by the intervention of a period in, what was first described by Ackner LJ, in Din v Wandsworth BC (June 23, 1981 unreported), as a, "settled residence." That case, and those that have followed it, made it clear that,
"What amounts to "a settled residence" is a question of fact and degree depending upon the circumstances of each individual case."
Those representing the defendant have brought to my attention, Knight v Vale Royal RBC  EWCA Civ 1258, whilst those representing the claimant have brought to my attention, Huda v Redbridge LBC  EWCA Civ 709. It seems to me that, as both of these cases are consistent in their approach to the law, and only differ in their conclusions on the facts, neither are of particular persuasive value; whilst the latter considered that the precarious nature of a licence entitled the reviewing officer to determine that the accommodation was not settled despite being occupied for a period of 2 years, the former concluded that an assured shorthold tenancy was capable of being settled accommodation, despite being able to be determined at the end of 6 months.
Whilst the allocation of social housing under the 2015 scheme is based upon the number of points awarded to individuals who fulfil certain criteria, I do not consider that this, of itself, is determinative of the meaning of the words "settled accommodation". The 2015 scheme is also a discretionary scheme involving evaluative judgments to determine the prioritisation of scarce resources, dependent upon an applicant's and others' particular circumstances; such that whilst an individual who is not in settled accommodation may be awarded 40 welfare points if a member of her household has a sufficient need for and fulfils the other criteria, if an applicant is already in what can properly be considered to be settled accommodation, then there would be no basis for awarding such points.
Therefore, although I accept that the inclusion of the words, "settled accommodation" in the 2015 scheme, would undoubtedly include the provision of Part VI social housing, I do not consider that it is necessarily limited to such accommodation. On the contrary, I consider that, depending upon the circumstances, and as a matter of fact and degree, the provision of Part VII accommodation may also amount to settled accommodation; such that, if the Part VII is not settled accommodation, then this may lead to an award of 40 category C welfare points if the applicant's household includes someone with a need for such accommodation, whilst if the Part VII accommodation is settled accommodation, there would be no basis for an award of 40 category C welfare points.
Moreover, not only is it of some significance that, by way of contrast, under category A welfare points, reference is made to the difference between "permanent housing" and "temporary housing", but it is clear from R(Ariemuguvbe) v Islington LBC  EWCA Civ 1308, that the interpretation of housing allocation schemes should not be over legalistic, and requires a degree of common sense and flexibility. In these circumstances, and acknowledging that the interpretation of the 2015 scheme is a matter for the court, (Mandalia v SSHD  UKSC 59), I reject the claimant's submission that the use of the term "settled accommodation" in the 2015 scheme necessarily means the provision of Part VI social housing.
It is in this context that the defendant was required to consider the opinion of Dr Gratton, as set out in her report of 11th October 2016. The report makes it clear that unless the claimant receives treatment for her mental health difficulties, she will continue to be "vulnerable" to PTSD and depressive symptoms. Moreover, (although this was not relied upon separately on behalf of the claimant), I note that in the "long term", the children's emotional development would be affected by the impact of depressive and PTSD symptoms on parenting. Dr Gratton was of the opinion that not only may there be a time lag in the provision of psychological intervention, but the claimant would be likely to need in excess of 25 sessions, of which 16 20 sessions would comprise cognitive behaviour therapy over a period of three to four months, and that once this phase had begun, it would be "ill-advised" to interrupt it by the disruption caused by a removal out of the area.
Dr Gratton also stated that, "ideally" housing and financial issues would be resolved, so that stress related to these does not contribute to the symptoms, and that the combination of all of these matters,
. have implications for the need for permanent housing."
Such that if the claimant,
. were to receive permanent housing and engage in the treatment described above then I would expect a significant improvement in her mental health."
The evidence as to the reason for the defendant's refusal to award 40 category C welfare reports, is provided between paragraphs 15 25 of Cora Nicholls witness statement dated 8th December 2016. Cora Nicholls sets out the defendant's view that accommodation provided under Part VII of the 1996 Act is capable of being "settled accommodation", and at paragraph 21 she states that,
. Mr Stanislas took the view (and I agree) that the Claimant's existing accommodation was both settled and suitable. The matters to which Dr Gratton refers in para 8.5.8 are the consequences for her treatment and her well-being if she were to be moved. While para 8.5.9 of Dr Gratton's report refers to her expectation of "a significant improvement in [the Claimant's] mental health" if she "were to receive permanent housing and engage in the treatment described above", this falls short of asserting or establishing that the present accommodation is not suitable on a settled basis."
Cora Nicholls, concludes at paragraph 22 that,
"Accordingly, taking into account the report of Dr Gratton, the Council does not consider that the Claimant has a need to settled accommodation that is not already being met."
Although I accept that prior to the provision of her present accommodation, the claimant was required to move outside the district for a period of about 6 months, thereafter she has been at her present property for about a year, and the evidence from the defendant is that she is likely to remain there for the foreseeable future. Undoubtedly, the claimant could be required to move from her present accommodation, hence it being known colloquially as temporary accommodation. However, in my judgment, when seeking to determine whether the claimant's present accommodation could properly be regarded as settled accommodation, the defendant was entitled to take into account both the time which the claimant has already spent in her present accommodation, and its own assessment of the likelihood of her remaining there for the foreseeable future. Having done so, I consider that the defendant was entitled to determine that the claimant's present accommodation amounted to settled accommodation for the purposes of the 2015 scheme.
In so far as the report from Dr Gratton is concerned, although it may be that the claimant, for the reasons set out in the report, would benefit from being in "permanent housing", the question that was posed to the doctor, and one of the matters which the defendant was obliged to consider, was whether the claimant had a "need" for settled accommodation. In this regard, it is important to bear in mind that although the defendant was obliged to take the opinions expressed by Dr Gratton into account, and, in view of her expertise, accord them considerable weight, ultimately the issue was one for the defendant to decide.
In my judgment, the language in which Dr Gratton expresses her opinion, to which I have already referred, does not necessarily amount to establishing a need for such accommodation, let alone a situation in which the housing or other circumstances severely affect the welfare needs of the claimant or her children. In these circumstances, bearing in mind the defendant's determination that her present accommodation was settled accommodation, I consider that the defendant was entitled to the view that the claimant did not have a need for settled accommodation which was not already being met, and that the decision not to award her 40 welfare points was not unlawful.
Furthermore, to the extent that it is submitted on behalf of the claimant that unlawfulness has arisen from the fact that Dr Keen only considered the claimant's circumstances in the context of her being awarded medical points, I do not consider that any such unlawfulness arises. Although it is correct that Dr Keen limited himself to a consideration of medical points, the defendant's decision, as explained by Cora Nicholls, was based upon a consideration of Dr Gratton's report, and her own assessment of the claimant's situation. As the 2015 scheme makes clear, the defendant was not obliged to seek its own medical advice when considering the award of welfare points, and the defendant through its senior officers was entitled to reach its own view, which in this case was reached after having appropriately considered the report from Dr Gratton.
Ground relating to the alleged unlawful procedure adopted by the defendant to its consideration of applications by homeless persons
Save for the discretionary power given to the Director of Housing Needs and Strategy to award additional priority and approve housing offers, "in special cases with exceptional needs", the 2015 scheme provides for three methods by which social housing is allocated by the defendant:
i. under choice based lettings;
ii. by supported choice, and;
iii. by direct offer.
Moreover, as I have already set out, to be eligible to bid for social housing under the 2015 scheme, an applicant must have been awarded at least 120 points.
Although the description of the latter two methods of allocation does not state in terms that an applicant who is dealt with under either of these systems requires to have been awarded at least 120 points, in my judgment this is implicit from the wording used by the defendant to explain these two methods of allocation under the 2015 scheme. In that not only does "supported choice" refer to an applicant not being "successful" (presumably at bidding), but "direct offer" refers expressly to the applicant being "unsuccessful at bidding." Moreover, the reference to the fact that homeless applicants may be made a direct offer, also refers to applicants who have "sufficient points". In this regard, there no mention of any fewer points being required, and I consider that it is implicit that they will require to have been awarded at least 120 points.
In these circumstances, save for the discretionary power given to the Director of Housing Needs and Strategy, there appears to be nothing in the 2015 scheme to suggest that applicants, who have been awarded less than 120 points, would be entitled to be made the subject of any offers of social housing.
If that had remained the position, then it does not seem to me that there would necessarily have been anything in the second ground of challenge, in that although, prior to the most recent witness statement from Karen Lucas, dated 26th January 2017, it had been unclear that the vast majority of homeless applicants had been allocated housing by way of supported choice or direct offer, these methods of allocation had been set out in the 2015 scheme, and unless the claimant could have persuaded the defendant to award her at least 120 points, (which was the aim of the first ground of challenge), then there was no reason to believe that she would have been entitled to be allocated social housing by either of these two methods.
However, during the course of the hearing, I was informed by those representing the defendant, that although a minimum of 120 points is required to have been awarded to those who are allocated social housing under choice based lettings and supported choice, those who are made the subject of a direct offer of social housing under the 2015 scheme, only require to have been awarded a minimum of 100 points. It was not my understanding that this was submitted to be ascertainable from the 2015 scheme itself, and if it is, I reject it for the reasons I have already provided in relation to the interpretation of the 2015 scheme. Instead, my understanding is that this is a matter of practice.
In my judgment, this makes a material difference to the submission made on behalf of the claimant, as to the alleged unlawfulness of this aspect of the 2015 scheme. Firstly, it seems to me, as I have already stated, that it was not ascertainable from the 2015 scheme that those with only 100 points, including the claimant, are entitled to be made the subject of direct offers, as a distinct method, separate from any discretionary power by the Director of Housing Needs and Strategy. Secondly, there is nothing in the 2015 scheme which sets out the criteria which the defendant uses to make direct offers, so as to enable an applicant, such as the claimant, both to make a realistic application to be dealt with under this system, and to know whether they are likely to succeed. Thirdly, this has had a direct effect upon the claimant, especially given the fact that in 2015 2016 about 37% of homeless applicants were made direct offers, in that the claimant would have been entitled; to apply for a direct offer; if unsuccessful, to understand why she had been unsuccessful, and; if the refusal was unlawful, to challenge it.
It seems to me that these matters are not ones of mere detail, but are central to the operation of this aspect of the scheme, such that it amounts, at the very least, to a breach of section 166A(1) of the 1996 Act (R (Lin) v Barnet LBC  EWCA Civ 132), and, to the extent that it is necessary to advert to common law principles, unlawful, (R(Lumba) v SSHD supra).
In these circumstances, not only am I satisfied that the procedure by which the defendant operates the provision of direct offers of social housing under the 2015 scheme is unlawful, but, in view of the lack of evidence that the claimant's application was considered under this part of the scheme, or, if it was considered, as to the reasons why a direct offer was not made to her, both the original decision made by the defendant and its review were also unlawful.
Ground relating to the alleged unlawfulness of the local lettings policy
As I have already noted, this ground does not relate to the argument that the 2015 scheme fails to give reasonable preference to those entitled to it under section 166A(3) of the 1996 Act, (a matter which has been determined, (subject to appeal), in R(Woolfe) v Islington LBC (supra)), but whether the local lettings policy unlawfully discriminates against homeless people, victims of domestic violence and therefore women, contrary to Article 14 read with Article 8 European Convention on Human Rights, sections 29 and 149 of the Equality Act 2010, and is also a breach of section 11 of the Children Act 2004.
Article 8 and 14 of the European Convention on Human Rights
Articles 8 and 14 of the European Convention on Human Rights (hereinafter "ECHR") provide as follows,
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of public health or morals, or for the protection of the rights and freedoms of others.
Prohibition of discrimination
It is apparent from the judgments in Mathieson v SSWP  UKSC 47, that four matters may be required to be considered in relation to an allegation of unlawful discrimination under Article 14:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
i. Whether the subject matter of the dispute is within the scope of one of the rights and freedoms which the claimant is entitled to enjoy under the convention;
The Convention right which the claimant seeks to rely upon is Article 8, and, for the purposes of these proceedings, the defendant does not seek to suggest that the allocation of social housing is not within the scope of Article 8; a matter which has recently been accepted in R(HA) v Ealing LBC  EWHC 2375 (Admin), and R(H) v Ealing LBC  EWHC 841 (Admin)).
ii. Whether the claimant has a status which Article 14 requires to be protected against discrimination in relation to the enjoyment of that right or freedom;
iii. Whether the claimant has been discriminated against in the enjoyment of that right or freedom because of her status;
iv. Whether the discrimination is nonetheless justified.
Furthermore, it is clear from the wording of Article 14 that the grounds on which discrimination is prohibited, not only includes those expressly set out, such as sex, but includes other status, such as homelessness (per R(RJM) v SSWP  UKHL 63). Once again the defendant does not seek to suggest otherwise, nor that being the victim of domestic violence is not a sufficient status for the purposes of Article 14, nor indeed that, the status of sex is not a relevant consideration in this case, because of the high likelihood of the victims of such violence being women.
Therefore, the arguments have centred upon the issues of whether there has been relevant discrimination in this case, and, if so, whether it is justified.
The defendant submits that there has been no relevant discrimination. It is submitted that those with whom the claimant seeks to compare herself, i.e. those who are entitled to the benefit of the local lettings policy, (because of their status as existing tenants of the defendant's social housing in the relevant area), are not in a sufficiently analogous position to enable the claimant to claim discrimination, because of less favourable treatment. Furthermore, that when considering whether there has been any relevant discrimination, the defendant submits that it is necessary to have regard to the whole of the 2015 scheme, rather than just the local lettings policy itself. Moreover, that if there has been any relevant discrimination, it is amply justified.
Those instructed on behalf of the claimant submit that she is in a sufficiently similar situation to the beneficiaries of the local lettings policy, and therefore Article 14 is applicable to this case. They submit that the question as to whether there has been unlawful discrimination should be limited to a consideration of the local lettings policy, rather than to a consideration of the whole of the 2015 scheme. Moreover, that the discrimination cannot be justified.
Article 14 has been the subject of various authoritative decisions. In R(Carson) v SSWP  1AC 173, Lord Nicholls said that,
"The essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to that question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact."
This approach was followed in AL(Serbia) v SSHD  UKHL 42, in which Baroness Hale said, at paragraph 25, that,
"This suggests that, unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to objective and reasonable justification."
Baroness Hale went on to say, at paragraph 38, that,
"But the issue is not whether some exercise of this sort might be justified, but whether this particular exercise, selecting some people for more favourable treatment than others, could be justified. It is, as Lord Bingham of Cornhill reminded us in A v Secretary of State for the Home Department  2AC 68, para 68 the discriminatory effect of the measure which must be justified, not the measure itself."
In the present case, although, as the defendant points out, there are differences between the claimant and the beneficiaries of the local lettings policy, I am not satisfied that those differences are so obviously relevant to prevent the claimant and the beneficiaries from being in analogous situations. On the contrary, they are all individuals who are seeking to be allocated social housing under the 2015 scheme, and to whom the defendant has chosen to accord different provisions, as it was entitled, subject to subsection (3), under section 166A(6)(b) of the 1996 Act.
In these circumstances, I consider that Article 14 does have application between the claimant and the beneficiaries of the local lettings policy, and that, under the terms of the latter policy, there is a clear difference in treatment between them which, unless justified, is unlawful. In that those who have had to move from the area in which they had been living due to domestic violence, and have thereby become homeless, will be unable to compete for new housing on the same favourable terms as the tenants of social housing situated in the area in which the new homes have been built. Moreover, that because of the high likelihood of victims of domestic violence being women, that this also amounts to discrimination on the grounds of sex.
However, to the extent that those representing the claimant seek to submit that the court is not entitled to have regard to the whole of the 2015 scheme, when considering the issue as to whether the discriminatory effect of the local lettings policy is justified, I disagree. I do not consider that this was what was meant by Baroness Hale, either in Al(Serbia) v SSHD (supra), or in R(SG) v SSWP  UKSC 16, where she said, at paragraph 188,
"Two points are clear from this. The first is that it is not the scheme as a whole which has to be justified but its discriminatory effect: see A v Secretary of State for the Home Department  2AC 68, para 68, per Lord Bingham of Cornhill; AL(Serbia) v Secretary of State for the Home Department  1WLR 1434, para 38, Baroness Hale of Richmond. It is not enough for the Government to explain why they brought in a benefit cap scheme. That can be readily understood. They have to explain why they brought in the scheme in a way which has disproportionately adverse effects on women."
Nor indeed, what was said by Goss J in R(HA) v Ealing LBC (supra), at paragraph 30.
Undoubtedly, the focus of scrutiny must be on the particular provision, in this case the local lettings policy, in order to see whether its discriminatory effect can be justified. However, that does not preclude the court from taking account of the context in which the policy resides, namely the 2015 scheme, when determining this issue.
In relation to the issue of justification, it is common ground that the four questions which the court has to consider are those set out in Bank Mellat v HM Treasury (No 2)  UKSC 39, namely:
i. Does the policy have a legitimate aim of sufficient importance that it could justify a restriction on the claimant's right not to be discriminated against?
ii. Is the policy rationally connected to that aim?
iii. Could a less intrusive policy have been used?
iv. Has the defendant struck a fair and proportionate balance between the severity of the consequences for the claimant, and the importance of the aim and the extent to which the policy will contribute to that aim?
However, a dispute has arisen as to the appropriate test which the court should apply to these questions. The defendant argues that the appropriate test in relation to each of these questions is that they should be answered in its favour unless its decision is "manifestly without reasonable foundation." On the other hand, the claimant argues that although this may be the test for the first three questions, in relation to the last question, it is essentially a matter to be determined by the court, as described by Baroness Hale, in R(Tigere) v SSBIS  UKSC 57, albeit she acknowledged that,
"Nevertheless, we are concerned with the distribution of finite resources at some cost to the taxpayer, and the court must treat judgments of the Secretary of State, as primary decision-maker, with appropriate respect."
I accept that there is a long line of authorities in which the defendant's position has been accepted, including the dissenting judgment of Lord Sumption in R(Tigere) v SSBIS (supra). However, those authorities have in the main dealt with questions of macroeconomic and/or social policy (Stec v UK (2006) 43 EHRR 1017, R(SG) v SSWP (supra) Mathieson v SSWP (supra), R(RJM) v SSWP (supra), and R(MA) v SSWP  EWCA Civ 13), whilst the policy under review is that of the defendant in relation to the allocation of social housing. Moreover, I note that Lord Mance in, In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill  UKSC 3, also accepted that the "manifestly without reasonable foundation" test does not apply to the fourth question, at paragraph 46,
. In my opinion, Mr Fordham is basically correct on this issue, at least as regards the fourth stage which presently matters, although that does not mean that significant weight may not or should not be given to the particular legislative choice even at the fourth stage."
In these circumstances, given the nature of the decision made by the defendant, I consider that it is a matter for the court to determine the question of proportionality on the basis submitted by the claimant; albeit, as the policy also concerns the allocation of finite resources, namely social housing, by a body that not only has considerable expertise and experience in these matters, but has been entrusted with this task by Parliament, significant weight should be accorded to the defendant's decision.
In relation to the four questions, the claimant acknowledges that the first two of these should be answered in the defendant's favour. It seems to me that this is an entirely appropriate concession, particularly bearing in mind that the main policy objectives behind the amendments brought about by the Localism Act 2011, as explained in the Secretary of State's statutory guidance, Allocation of accommodation: guidance for local housing authorities in England, (to which the defendant was obliged to have regard by section 169(1) of the 1996 Act), includes, at paragraph 2.1,
"make it easier for existing social tenants to move by removing the constraints of Part 6 from those social tenants who apply to the housing authority for a transfer, unless they have reasonable preference. Housing authorities will be able to strike a balance between meeting the needs of existing tenants and new applicants for social housing, whilst making best use of their stock
However, the claimant argues for the contrary conclusion to the other two questions. It is submitted on her behalf, that the local lettings policy provides a total bar to anyone in her situation being able to be allocated new social housing. Secondly, that the adverse effect of this is compounded by the fact that the new homes will be more attractive than the pre-existing ones. Thirdly, that there is no justification for the policy, and that the decisions of R(HA) v Ealing LBC (supra) and R(H) v Ealing LBC (supra), which held that the London Borough of Ealing's housing allocation policy was similarly unlawful, are essentially indistinguishable from the present case.
On behalf of the defendant, it is denied that the local lettings policy acts as a total bar to someone, such as the claimant, who is not a local tenant of social housing, or that new homes are necessarily of a better standard than existing housing. The defendant contends that, given the different priorities which it is permitted to designate to different groups of individuals, its decision that there was no less intrusive a policy than the one contained in the 2015 scheme cannot be said to be manifestly without reasonable foundation, and that the local lettings policy strikes a fair and proportionate balance between the relevant considerations.
The genesis, reasoning and effect of the local lettings policy is contained in the witness statements of Karen Lucas. She explains that the original local lettings policy was introduced in 2013, in response to the enactment of the Localism Act 2011, and then expanded to its current form in 2015, following an equality impact assessment. Unfortunately, although the Defendant has not been able to be locate the latter, the impact assessment for the original scheme is available, as is the Executive Report for the current expanded local lettings policy.
This latter document refers to the fact that a resident impact assessment had been carried out, and that,
. This confirms that extension of the Local Lettings Policy is a minor change in line with the legal definition. The resident impact assessment identifies a risk that new build properties may be let to households in less severe housing need because local households already in social housing will be prioritised. However, letting to households already in social housing should release another unit of social housing, which will be let to the household in highest need. The Local Lettings Policy should, therefore, create more churn in the borough's social housing stock enabling more households to move to suitable housing. The impact of change will be reviewed after two years to ensure they do not have a negative impact on any particular groups."
It is apparent that the defendant has been monitoring the effect of the local lettings policy, and although Karen Lucas' earlier witness statements contained some errors in relation to the results of this monitoring, these have been rectified in her most recent witness statement dated 26th January 2017. It would appear that the number of local lettings in the period 1st June 2015 31st May 2016, was 89, out of a total number of 1,172 lettings under the 2015 scheme. Moreover, of those let under the local lettings policy during this period, about 76% went to women as the main or joint applicant. The defendant also carried out an analysis of 25 randomly selected lettings from those allocated under the local lettings policy, and found that this had generated 32 consequential lets, of which 50% went to homeless families. Moreover, of the total of 57 new lettings resulting from those let under the local lettings policy and consequential lets, 91% went to women as the main or joint applicant.
In her witness statement dated 11th July 2016, Karen Lucas explains some of the benefits which the defendant considers emanate from the local lettings policy, which not only includes the benefits of stable communities within the borough, and the facilitating of bringing refurbishment and new housing developments to fruition, but the freeing up of accommodation which thereby becomes available for letting under the 2015 scheme. In relation to this latter aspect, Karen Lucas points out that the opportunities for applicants to be housed from this process, known colloquially as "churn",
. will not be confined to applicants already within the local lettings areas themselves, because they will be available under the general provisions of the Housing Allocation Scheme
9. Accordingly, experience tells us that the local lettings policies result in net gain in the number of social housing units available for allocation within the borough
In her witness statement dated 5th December 2016, Karen Lucas goes on to explain that,
"20. Local lettings sit within Islington's broader housing objectives and priorities under the Scheme as a whole, not least because local lettings help to facilitate other chain lettings. Both local lettings and other general allocations aim to achieve a balance in the assistance to be afforded between various different and potentially wide-ranging groups of people, having regard to the overall statutory requirement to secure reasonable (or in some cases additional) preference for certain designated descriptions of people (including the homeless). Greater preference for one group necessarily means reduced preference for another; and the allocation of any given property to one applicant means it is not available to another. The precise way this is done is reflective of local conditions, the professional judgments of experienced senior officers, guidance from Central Government, local opinion and the views of democratically-elected members who are ultimately responsible and answerable for the adoption of the housing allocation scheme."
Undoubtedly, the local lettings policy does give priority to existing local tenants of social housing, as authorised, subject to subsection (3), by section 166A(6)(b) of the 1996 Act. However, it is clear from the 2015 scheme itself, that it does not act as a total bar to someone from outside the locality, such as the claimant, being able to be allocated new social housing, in that not only are 20% of the available properties prioritised to local tenants under Community Lettings and Intra-estate transfers, but in relation to New homes on estates and Other new homes,
"Remaining properties will be let according to the council's housing allocation policy."
Furthermore, not only is one of the intended benefits of the local lettings policy to enable the provision of more social housing to be allocated in accordance with the reasonable preferences set out in section 166A(3) of the 1996 Act, than might otherwise be available without it, but the operation of the policy appears to have had this effect.
In relation to the claimant's submission that any unlawful discrimination arises from the alleged differences in benefit from the provision of new social housing, rather than existing social housing, not only is there no evidence to this effect, but far from being a matter which is so obvious that I am entitled to take judicial notice of it, it seems to me that if other factors are taken into account, such as the size of allocated living space, it is far from obvious that there is any benefit to be gained from the provision of new social housing.
As Karen Lucas points out in her witness statements, given the imbalance between supply and demand of social housing, its allocation is an extremely difficult matter for local housing authorities, both in relation to the devising of its allocation scheme, and in relation to its implementation. This has been reflected in a number of previous decisions of the courts, not least in R(Ahmad) v Newham LBC  UKHL 14, in which Baroness Hale said at paragraph 15,
"The trouble is that any judicial decision, based as it is bound to be on the facts of the particular case, that greater weight should be given to one factor, or to a particular accumulation of factors, means that lesser weight will have to be given to other factors. The court is in no position to rewrite the whole policy and to weight 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."
Moreover, Lord Neuberger went on to say, at paragraph 46,
.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 to 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 re-housing, 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."
It is apparent that prior to the local lettings policy being devised and implemented, the defendant carried out an assessment of its discriminatory effect, and continues to carry out such monitoring. Moreover, that in the context of the 2015 scheme as a whole, the effect of the local lettings policy, as was intended, has a beneficial effect upon the provision of social housing within the borough, in that it facilitates the securing of reasonable preferences to those, including the claimant, who are entitled to it under section 166A(3) of the 1996 Act. It may be that it is always possible to think of possible ways in which to create less intrusive policies in general. However, I do not consider that the defendant's local lettings policy could be any less intrusive, in the sense of being less detrimental to the claimant, and still maintain its legitimate aim. Certainly, the defendant's decision on this point, is not manifestly without reasonable foundation. Furthermore, in relation to the issue of proportionality, I consider that, bearing in mind the extent to which the local lettings policy contributes to that aim, the local lettings policy does strike a fair and proportionate balance between the severity of the consequences for the claimant, and the importance of the aim.
Furthermore, I do not consider that there is any conflict between this decision and those relating to the policies of the London Borough of Ealing. In relation to R(HA) v Ealing LBC (supra), and unlike the present case, Goss J found that the residency requirement had the effect of precluding those who fulfilled the reasonable preference criteria, and that no rational justification had been provided for the policy. Moreover, in R(H) v Ealing LBC (supra), there was no "safety valve" allowing for exceptional circumstances, whilst in the present case, not only is there the defendant's practice of making direct offers to homeless applicants, but the 2015 scheme specifically provides a discretionary power to the Service Director for Housing Needs and Strategy to award additional priority and approve offers of housing, taking into consideration all factors relevant to housing and social needs.
Sections 29 and 149 of the Equality Act 2010
The Equality Act 2010 ("the 2010 Act") provides that,
"19 Indirect Discrimination
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, person with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant characteristics are
29 Provision of services, etc.
(1) A person (a "service-provider") concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
(2) A service-provider (A) must not, in providing the service, discriminate against (B)
(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.
149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under this Act;
(b) advance equality of opportunity between persons who a share relevant protected characteristic and persons who do not share it;
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(7) The relevant protected characteristics are
Having already considered some of the issues which are common to both Article 14 read with Article 8 ECHR, and the 2010 Act, these aspects of the case can be taken with more expedition. It seems to me that the defendant is a service provider for the purposes of section 29(1) of the 201 Act; the relevant service being the provision of the housing allocation scheme. In any event, the defendant, as a body exercising a public function, is required by section 29(6) not to do anything that constitutes discrimination.
The claimant, as a woman, has a relevant protected characteristic, and, having found that the local letting scheme discriminates against women for the purposes of Article 14 read with Article 8 ECHR, I consider that, bearing in mind the definition of indirect discrimination in section 19(2) of the 2010 Act, unless the policy can be justified under section 19(2)(d), the policy also discriminates against the claimant under section 29(2).
However, having found for the purposes of Article 14 read with Article 8 ECHR, that the discrimination was justified, in that it is proportionate because it strikes a fair and proportionate balance between the severity of the consequences for the claimant, and the importance of the aim, I also consider that it is proportionate for the purposes of section 19(2)(d) of the 2010 Act. In these circumstances, I do not consider that there is any unlawful discrimination contrary to section 29(2).
Section 149(1) of the 2010 Act requires the defendant, in exercising its functions, in this case the allocation of social housing, to have due regard to the need to eliminate discrimination, and to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. In doing so, under subsection (3), it must have due regard to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic, and to take steps to meet the needs of persons who share such a characteristic that are different from the needs of persons who do not share it.
The public-sector equality duty has been considered in a number of decisions, as has the phrase, "due regard", and in Hotak v Southwark LBC  UKSC 30, Lord Neuberger, summarised many of these at paragraphs 73 75,
"73 The equality duty has been the subject of a number of valuable judgments in the Court of Appeal. Explanations of what the duty involves have been given by Dyson LJ (in relation to the equivalent provision in the Race Relations Act 1976) in Baker v Secretary of State for Communities and Local Government  EWCA Civ 141,  PTSR 809, paras 30-31,Wilson LJ (in relation to section 49A of the Disability Discrimination Act 1995, as inserted by section 3 of the Disability Discrimination Act 2005, the predecessor of section 149 of the 2010 Act) in Pieretti v Enfield London Borough Council  EWCA Civ 1104,  PTSR 565, paras 28 and 32, and McCombe LJ in Bracking v Secretary of State for Work and Pensions  EWCA Civ 1345,  Eq LR 60, para 26 which pulls together various dicta, most notably those of Elias LJ in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin), paras 77-78 and 89. I do not propose to quote those passages in extenso: they are not challenged in these appeals, and in my view, at least as at present advised, rightly so.
74 As Dyson LJ emphasised, the equality duty is "not a duty to achieve a result", but a duty "to have due regard to the need" to achieve the goals identified in paras (a) to (c) of section 149(1) of the 2010 Act. Wilson LJ explained that the Parliamentary intention behind section 149 was that there should "be a culture of greater awareness of the existence and legal consequences of disability". He went on to say in para 33 that the extent of the "regard" which must be had to the six aspects of the duty (now in subsections (1) and (3) of section 149 of the 2010 Act) must be what is "appropriate in all the circumstances". Lord Clarke suggested in argument that this was not a particularly helpful guide and I agree with him. However, in the light of the word "due" in section 149(1), I do not think it is possible to be more precise or prescriptive, given that the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment.
75 As was made clear in a passage quoted in Bracking, the duty "must be exercised in substance, with rigour, and with an open mind" (per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin),  PTSR 1506, para 92. And, as Elias LJ said in Hurley and Moore, it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that "there has been rigorous consideration of the duty". Provided that there has been "a proper and conscientious focus on the statutory criteria", he said that "the court cannot interfere
simply because it would have given greater weight to the equality implications of the decision".
The claimant submits that there is no evidence that the defendant gave due regard to its public-sector duty, and submits that, in the absence of such evidence, there is an inevitable breach of that duty, (Haque v Hackney LBC  EWCA Civ 4). I have no doubt that the latter part of this submission is correct. However, as to the first part, this is disputed by the defendant who relies upon impact assessment which was carried out before the original local lettings policy was implemented, and the fact that specific consideration was given to this issue prior to the implementation of the current local lettings policy.
It is apparent from the documentation annexed to Karen Lucas' witness statement, dated 11th July 2016, that when the original local lettings policy was introduced, the whole of the defendant's housing allocation scheme, which necessarily included the local lettings policy, was subjected to an extensive analysis, for the express purpose of enabling the defendant to fulfil its statutory duty of having due regard to the public-sector equality duty. The summary of its findings expressed that,
"There are no major equalities risks identified in the revised HAS with respect to the 1st and 2nd elements of the duty."
Furthermore, although the defendant has been unable to provide a copy of the more recent equality assessment report, the executive summary by the Services Development Manager, Paul Byer, dated 7th May 2015, makes express reference to its duty to have due regard to the public-sector duty at paragraph 4.4.2, and I have previously set out the result of its resident impact assessment, which included a commitment to undertake a further review to ensure that the changes,
.do not have a negative impact on any particular groups."
It is clear from the 2015 scheme itself that the defendant recognises the public-sector equality duty under the 2010 Act, and makes express reference to the ongoing monitoring of the scheme to enable it to fulfil its statutory duty. Moreover, the 2015 scheme makes specific favourable provision, not only for homeless applicants, but also those who are the victims of domestic violence, which are the relevant factors which the claimant relies upon to seek to establish that she has been discriminated against on the grounds of sex.
Taking these matters into account, and in the context of this case, in which the defendant was dealing with the difficulties of allocating scarce resources within the statutory framework of the 1996 Act, I am satisfied that the defendant gave a sufficiently rigorous and conscientious consideration to the public-sector equality duty, when it introduced the current local lettings policy, and has satisfied the statutory requirement to have due regard to it.
Section 11 of the Children Act 2004
Section 11 of the Children Act 2004 makes arrangements to safeguard and promote the welfare of children in the following terms,
"11 Arrangements to safeguard and promote welfare
(1) This section applies to each of the following
(a) a local authority in England
(2) Each person and body to whom this section applies must make arrangements for ensuing that
(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b) any services provided by another person pursuant to arrangements make by the person or body in the discharge of their functions are provided having regard to that need.
This provision, has recently been considered by the Supreme Court in Nzolameso v Westminster City Council  UKSC 22, in which Baroness Hale noted, at paragraph 24, that,
"It has been held that section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case. As Pitchford LJ put it, in R(Castle) v Metropolitan Police Comr  1 All ER 953, at para 51:
In relation to the interpretation of section 11, Baroness Hale went on to say, at paragraphs 28 29,
"the chief officer's statutory obligation is not confined to training and dissemination of information. It is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare.""
"28 However, section 11 does not in terms require that the children's welfare should be the paramount or even a primary consideration. As the Joint Committee on Human Rights pointed out (19th Report of Session 2003-2004, Children Bill, HL Paper 161, paras 69 to 77), it does not in terms reproduce the wording of article 3(1) of the United Nations Convention on the Rights of the Child ("UNCRC"):
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
29 Where Convention Rights under the Human Rights Act 1998 are engaged, it is well established that they have to be interpreted and applied consistently with international human right standards, including the UNCRC: see ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  2 AC 166, H(H) v Deputy Prosecutor of the Italian Republic Genoa (Official Solicitor intervening),  UKSC 25,  1 AC 338, Stevens v Secretary of State for Communities and Local Government  EWHC 792 (Admin),  JPL 1383, approved in Collins v Secretary of State for Communities and Local Government  EWCA Civ 1193,  PTSR 1594. It is not suggested in this case that any of the Convention rights are engaged: compare Yumsak (para 19 above), where it was conceded that placing the mother and her children in Birmingham interfered with their rights under article 8 of the Convention. We have not heard argument on the interesting question of whether, even where no Convention right is involved, section 11 should nevertheless be construed consistently with the international obligations of the United Kingdom under article 3 of the UNCRC. That must be a question for another day."
Moreover, in Mathieson v SSWP (supra), Lord Wilson said, in relation to Article 3.1 of the UN Convention on the Rights of the Child (1989), at paragraph 39,
The UN Committee on the Rights of the Child, in its General Comment No 14 (2013) on article 3.1, analysed a child's "best interests" in term of a three-fold concept. In R(JS) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening)  1 WLR 1449, paras 105 106, Lord Carnwath JSC described the committee's analysis as authoritative guidance. The first aspect is the child's substantive right to have his best interests assessed as a primary consideration whenever a decision is made concerning him. The second is an interpretive principle that, where a legal provision is open to more than one interpretation, that which more effectively serves his best interests should be adopted. The third is a "rule of procedure", described as follows:
In the present case, the claimant does not seek to suggest that the decision not to allocate her social housing under Part VI of the 1996 Act involved a breach of section 11 of the Children Act 2004, but rather that the introduction and maintenance of the local lettings policy gives rise to a breach of the defendant's statutory duty under the latter Act.
"Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned
. Furthermore, the justification of a decision must show that the right has been specifically taken into account."
In the earlier case of R(Woolfe) v Islington LBC (supra), those representing the claimant in the present case made a similar submission alleging that the points threshold under the 2015 scheme had been introduced in contravention of the defendant's duty under section 11 of the Children Act 2004. This was considered and rejected by Holman J, who accepted that, prior to its introduction, the defendant's housing authority discussed the 2015 scheme with the social services department. Moreover, that the defendant has a joint working protocol between the children's services and the housing services, and that when considering whether points ought to be allocated for welfare, the housing services will contact the social services. All of which constituted having regard to the need to safeguard and promote the welfare of children.
As I have already found in relation to the public-sector equality duty, at the time when the 2015 scheme was being considered by the defendant, this included the local lettings policy. In these circumstances, it follows that when, prior to its introduction, the defendant considered the need to safeguard and promote the welfare of children in relation to the 2015 scheme, it again included the local lettings policy. Moreover, even if this was at a time prior to the introduction of the revised policy, I do not consider that its fundamental nature has altered sufficiently to necessitate further specific consideration being given to the defendant's duty under section 11 of the Children Act 2004.
I have also seen the "Information and Good Practice Guidance, Targeted and Specialist Children and Families Services and Housing Services", which makes specific provision in relation to the defendant's duty to safeguard and promote the welfare of children. Moreover, the 2015 scheme itself also provides for specific consideration, and priority, being given to the welfare needs of children, in relation to factors including, rehousing standards, the allocation of medical and welfare points, homeless families, and referrals from the defendant's Adult Social Services and Children's Services.
To my mind, it is also important to bear in mind that, just as with the position relating to the application of Article 14 as read with Article 8 ECHR, one of the intended and actual effects of the local lettings policy has been to increase the supply of available social housing within the borough. As Karen Lucas explains in her witness statement dated 5th December 2016, at paragraphs 38 and 39,
"38 There is no reason to believe that separate and distinct child welfare considerations arise in relation to the Local Lettings Scheme. Whether children can be accommodated in such properties at all will be entirely dependent on the size of and features of the property; children would not be accommodated in accommodation that was suitable only for single people or couples, or in accommodation for older people. If a new property subject to the local lettings scheme is suitable for children it will be allocated to an applicant with children who has the highest priority under the allocation scheme (including need) and the closest match in terms of requirements (for example, size and number of bedrooms). Any new properties with specific features relevant to children's needs (such as low level or adapted) will be allocated according to matching housing need.
39 Further, households with children with particular needs who do not succeed in being allocated one of the relatively few properties subject to Local Lettings will nonetheless receive due priority under the Scheme as a whole in relation to the allocation of any of the other properties freed up by an existing tenant who is moved as a result of a Local Letting. As explained above, the majority of opportunities to be housed are generated by the Local Lettings Scheme are within the properties which consequently become available for letting."
In the circumstances, I do not consider that in introducing or maintaining the local lettings policy, the defendant is in breach of its duty under section 11 of the Children Act 2004.
Although I appreciate that, due to her personal circumstances, the claimant faces real challenges in the care of herself and her three children, I also appreciate that, for the reasons which have already been provided, the defendant also faces challenges in the allocation of social housing. Moreover, whilst I can understand that those who have sought to assist the claimant to secure social housing may consider, with some justification, that she has significant needs, the defendant has also had to take account of the needs of others who have applied for social housing. Clearly, as a result of my findings in this case, the defendant will be obliged to reconsider the claimant's application, and, if it has not already done so, give careful consideration to the claimant's needs and those of her children, when determining whether to make a direct offer of social housing to her. However, that will be a matter for the defendant to determine in due course.
In the meantime, I grant permission to the parties to rely upon the further evidence from Karen Lucas and Polly Neate, and to the claimant to rely upon the first two grounds of judicial review which I have considered in this case. Although I do not consider that any unlawfulness arises either from the decision not to award the claimant 40 welfare points, or from the introduction and maintenance of the local lettings policy, for the reasons I have provided, I am satisfied that the procedure by which the defendant operates the provision of direct offers of social housing under the 2015 scheme is unlawful, and, in view of the lack of evidence that the claimant's application was considered under this part of the scheme, or, if it was considered, as to the reasons why a direct offer was not made to her, both the original decision made by the defendant and its review were also unlawful.
Copyright Policy |
Donate to BAILII