R (on the application of Z and Others) v Hackney London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Sir Kenneth Parker |
| Judgment Date | 04 February 2019 |
| Neutral Citation | [2019] EWHC 139 (Admin) |
| Docket Number | Case No: CO/667/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 February 2019 |
[2019] EWHC 139 (Admin)
Lord Justice Lindblom
and
Sir Kenneth Parker
Case No: CO/667/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ian Wise QC and Mr Michael Armitage (instructed by Hopkin Murray Beskine) for the Claimants
Mr Matt Hutchings QC (instructed by Hackney Legal Services) for the First Defendant
Mr Christopher Baker and Ms Rea Murray (instructed by Asserson Law Officer) for the Second Defendant
Hearing dates: 20, 21 and 22 November 2018
Judgment Approved by the court for handing down
(subject to editorial corrections)
Lord Justice Lindblom and Sir Kenneth Parker
Introduction
This is the judgment of the court.
The claimants are a mother and her son, aged three. The defendants are Hackney London Borough Council (“Hackney”) and Agudas Israel Housing Association (“AIHA”). The claim challenges the arrangements made by AIHA for the allocation of social housing properties owned or controlled by AIHA, which in present circumstances in effect preclude any persons who are not members of the Orthodox Jewish community from becoming tenants of such properties. The claim also challenges the lawfulness of Hackney's arrangements for the nomination of applicants to these properties, which again in present circumstances in effect precludes any persons who are not members of the Orthodox Jewish community from receiving nominations for the properties owned by AIHA. In short, the claimants contend that these arrangements discriminate against them because they are not members of the Orthodox Jewish community, and are unlawful, principally, under the Equality Act 2010.
Housing Act obligations on Hackney
Hackney is the local housing authority. Part 6 of the Housing Act 1996 sets out its functions concerning the allocation of social housing. Section 159(2) states:
“For the purposes of this Part a local housing authority allocate housing accommodation when they –
…
(c) nominate a person to be an assured tenant of housing accommodation held by a private registered provider of social housing or a registered social landlord.
… .”
Section 166A(1) states:
“Every local housing authority in England must have a scheme (their “allocation scheme”) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.”
Section 166A(14) provides:
“A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.”
Hackney's allocation scheme
Hackney operates a needs points-based, choice-based letting allocation scheme, governed by the allocation policy set out in its lettings policy of 1 July 2016. Sections 3 and 4 of the policy set out the eligibility criteria. Section 6 governs the choice-based lettings scheme whereby Hackney awards rehousing applicants priority under a banding/points system based on need. Paragraph 6.1 states:
“… if you have been accepted onto the Council's Housing Register you will be asked to “bid” on council properties and those nominated by our Registered Providers (RPs). Because the demand for social housing in Hackney far exceeds that which we can supply, it is necessary that we prioritise each application on the Housing Register to help ensure that the housing stock we do have is allocated in the most appropriate way.”
Paragraph 6.2 states:
“This means that the household with the highest priority bidding for a property is given first refusal on whether they take up this offer, and if not the opportunity passes down to the next highest priority household.”
Paragraph 6.6 sets out “the bands in descending priority order and the number of points you require to fall within this band”. These are “Emergency” with 250–998 points, “Urgent” with 100–240 points, “Priority” with 40–90 points, “Homeless” with 999+ points and “General” with 10–30 points.
Paragraph 6.12 stipulates that:
“… these points are not accumulative, if you qualify in more than one area … the points you are awarded are not added together. Instead, whichever of the areas that generates the highest priority is used to define the band you are placed in.”
Points are awarded for various factors such as emergency situations (paragraph 6.13), disrepair of accommodation (paragraph 6.16), overcrowding (paragraph 6.27), medical conditions (paragraph 6.34) and exceptional social pressure (paragraph 6.50). Under paragraph 6.81, where a household has multiple or composite needs, Hackney may:
“a) [Make] an additional points award so that your application is moved into a higher band as appropriate,
b) [Adjust] priority date [sic] of you [sic] application within the band you have been placed, or
c) A combination of both (A) and (B).”
There are a few other ways in which Hackney may allocate housing, including by making a direct offer. Paragraph 7.2 states:
“Sometimes, a household's need to move is so urgent that the process of bidding for a suitable property may take too long to avert a crisis occurring. Alternatively a household living in temporary accommodation who coming towards the end of their lease, or who are not taking sufficient action to find suitable permanent accommodation [sic]. There will also be occasions when it is of mutual benefit to both the Council and a household seeking to move to circumvent the Choice Based Lettings process. In these types of instances the Council reserves the right to make a direct offer of accommodation to a household currently on the Housing Register. Please be aware you will one [sic] receive one direct offer.”
Paragraph 7.16 also states that:
“Anyone affected by domestic violence or racial harassment and who feels unable to continue living in their home as a result of this is entitled to apply as homeless to the Council's Homelessness Service or to any other local authority.”
Paragraph 1.5.1 stipulates that the policy covers tenancies of both Hackney's own properties and those of housing associations in respect of which Hackney has nomination rights. Hackney refers priority applications to private providers. Paragraph 9.6 sets out the following in relation to nominations to housing associations:
“The Council has nomination rights to some housing association properties. These properties are let in exactly the same manner as Hackney's own housing stock. Housing association properties may be advertised or offered directly to high priority applicants. The same banding system and method of prioritising applies to housing association homes and no separate list is retained for nominations to housing associations.”
Paragraph 9.9 states:
“Housing associations are independent of the Council and have the final decision as to whether or not to accept a nomination from Hackney Council. If an applicant is unhappy with the viewing process operated by a housing association, or feels their nomination has been unfairly rejected, then they are advised in the first instance to use the complaints procedure of the relevant housing association.”
Bidding
Once applicants have been awarded their points, they must bid on properties to take advantage of their awarded priority. The East London Letting Company (“ELLC”) runs the online bidding process for the Hackney housing register. Their website sets out how the nominations procedure works in practice:
“When bidding closes all bids are sorted into priority order with those in the highest band and with the oldest band date placed at the top of the list. Eligibility checks are then carried out by the lettings team, including checks for rent arrears, local connection and immigration status.
After the checks have been completed, a list of the top five eligible bidders will be sent to the Council neighbourhood offices or Housing Associations. ‘Shortlisted’ applicants will usually be contacted within a week by phone or letter and invited to view the property…”
The nominations agreement
Hackney, like other local authorities, operates contractual arrangements with private housing providers so as to enable it to make nominations. Hackney entered into a housing associations nominations agreement with AIHA. Paragraph 5.3 sets out Hackney's role in the nominations process:
“Generally, the Council will submit one nomination per vacancy. If this nomination is unsuccessful then successive nominations will be made on an individual basis. …”
Under paragraph 8.3.1, Hackney is entitled to nominate in relation to 50% of one-bed/bedsit vacant properties and to 75% of those with two beds or more. Paragraph 8.5.3 states:
“Occasionally, there may be instances where the Council will find it difficult to nominate to housing schemes catering for groups not specifically classified [in] the Council's ethnic monitoring system. If this is the case there are two ways in which this problem will be addressed…. For associations/co-ops catering solely for a specific ethnic group outside of the Council ethnic monitoring schema [sic], problems of this nature should be resolved through the procedures outlined in the review section at 11.0 below.” (original emphasis)
Paragraphs 9.1 and 9.2 on reconciling policy differences state:
“9.1 As ‘ Partners’ recommends, associations/co-ops should generally accept the local authority's prioritisation of need. There may however be instances where Council nominees are deemed to be inappropriate according to the association/co-op's own policy criteria (see paragraph 6.9 for procedural detail). Some of the policy areas where there are likely to be such differences are: bedspace and floor level standards, medical assessments, policies on children of the same/opposite sex sharing, and policies for families...
To continue reading
Request your trial
- R (on the application of Z and another) v Hackney London Borough Council and another
-
The Queen (on the application of Z and Another) v London Borough of Hackney
...of the Act. Since that discrimination was lawful, Hackney's allocation policy was also lawful. The Divisional Court's judgment is at [2019] EWHC 139 (Admin). The Divisional Court gave judgment on 4 February 2019; and the appeal was heard in this court less than five months later. The EU ba......