R (on the application of TW) (No.2) v London Borough of Hillingdon
| Jurisdiction | England & Wales |
| Judge | Ms Collins Rice |
| Judgment Date | 08 February 2019 |
| Neutral Citation | [2019] EWHC 157 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4553/2018 |
| Date | 08 February 2019 |
[2019] EWHC 157 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rowena Collins-Rice
(Sitting as a Deputy High Court Judge)
Case No: CO/4553/2018
Mr Ian Wise QC (instructed by Hopkin Murray Beskine Solicitors) for the Claimant
Mr Kelvin Rutledge QC and Mr Andrew Lane (instructed by London Borough of Hillingdon Legal Services) for the Defendant
Hearing dates: 22 nd & 23 rd January 2019
Approved Judgment
Background
The context of this case is an area of public policy and administration the challenges of which are well known: the fair allocation of housing resources by local authorities in circumstances where demand considerably outstrips ready supply. More specifically, the context is localism, and the fair reconciliation of a housing policy favouring people with established local ties, with the needs of those for whom that may present particular difficulties – in this case, members of the Irish Traveller community.
It is a case about the housing of a young mother of Irish Traveller heritage. She has three small children, two of primary school age and a younger third. She is known in this case as TW to protect family privacy. It is also a case about a London Borough where there are on average four applicants for each home it can make available.
TW applied to the London Borough of Hillingdon (‘Hillingdon’) for homelessness assistance in 2015. Hillingdon accepted it had a responsibility to help, and provided her with temporary accommodation on 7 th December of that year. By all accounts it was in extremely poor condition. TW was concerned for her family's health and welfare, and anxious to move. At the beginning of 2018, with legal help, she began the process, to which she has a right, of formally challenging Hillingdon's failure to rehouse her. In the course of that process, her accommodation was found to be unfit for human habitation, and Hillingdon agreed in March of 2018 that it would move her as soon as possible.
How soon that could be in reality was a matter of how much priority Hillingdon would give her case, in comparison with others who also needed accommodation. TW was not satisfied Hillingdon was properly prioritising her family. In the summer of 2018 she brought judicial review proceedings (‘ TW (no.1)’) to challenge the lawfulness of Hillingdon's handling of her case. The High Court declared that in some respects the allocation policy Hillingdon was applying to TW was unlawful. The judgment in that case ( TW & Ors v London Borough of Hillingdon [2018] PTSR 1678) is considered more fully below. By the middle of November 2018, however, she had still not been rehoused. She began these judicial review proceedings on 15 th November 2018.
The Legal Framework
Three substantial pieces of legislation set out Hillingdon's legal responsibilities in a case such as this. There is considerable case-law in relation to each.
The Housing Act 1996
Part VI of the Housing Act sets out the principal housing duties of local authorities. Section 166A requires Hillingdon to have an allocation scheme for determining priorities in allocating housing, and it is then obliged to allocate housing in accordance with that scheme. Reasonable preference has to be given to people who are homeless within the meaning of Part VII of the Act, as TW was, and certain other categories of people. Within this ‘reasonable preference’ group, the scheme may contain provision for determining priorities among people, and the factors which s.166A(5) particularly mentions as being able to be taken into account in doing so include people's financial resources and any local connection which exists between a person and a local authority's district. Section 199 provides more detail about what ‘local connection’ means for these purposes; it includes, as might be expected, factors such as residence, employment and family associations.
Part VII makes further specific provision in respect of homelessness, as there defined. In particular, it provides that local authorities' housing functions in relation to homeless people can be discharged only by securing that ‘suitable’ accommodation provided by them is available; or by securing the obtaining of ‘suitable’ accommodation from another person; or by giving such advice and assistance as will secure that ‘suitable’ accommodation is available from another person (section 206).
Part VII also provides (section 202) a right to request a review of the decisions local authorities take about housing, and as to the ‘suitability’ of accommodation offered in the discharge of its duties. There is a further right to appeal against the outcome of a review, on a point of law, to the County Court (section 204). These provisions are the principal routes of challenge available to people who are not satisfied that local authorities have properly discharged their housing duties towards them.
The Equality Act 2010 places particular obligations on authorities such as Hillingdon in relation to certain protected characteristics of people. Protected characteristics are defined in section 4 to mean age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It was accepted in this case that for these purposes ‘race’ includes Irish Traveller heritage.
The effect of section 29 of the Equality Act is that Hillingdon must not, in its provision of housing services to the public, or otherwise in the exercise of its public functions, unlawfully discriminate against anyone. Unlawful discrimination can be either direct or indirect. By section 13(1), direct discrimination would happen if Hillingdon treated someone, because of a protected characteristic, less favourably than it would treat others. Section 19 defines indirect discrimination as follows:
“(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, persons 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.”
The Equality Act does not permit ‘positive discrimination’. Simply treating someone more favourably because of a protected characteristic can amount to unlawful direct discrimination against others with a protected characteristic who have inevitably been treated less favourably as a result. That does not, however, prevent the taking of positive action, as defined in section 158 of the Act. The Act imposes no duty to take positive action. However, if Hillingdon were reasonably to think that persons who shared a protected characteristic suffered a disadvantage connected to the characteristic, or had needs that were different from the needs of others, or that participation in an activity by persons sharing a protected characteristic was disproportionately low, then it could take positive action. That means action which is a proportionate means of achieving the aim of, as the case may be, enabling or encouraging persons sharing the protected characteristic to overcome or minimise the relevant disadvantage, meeting their different needs, or enabling them to participate in the relevant activity.
In accordance with section 11 of the Children Act 2004, Hillingdon must
“make arrangements for ensuring that … their functions are discharged having regard to the need to safeguard and promote the welfare of children…”
That includes their housing functions.
Hillingdon's Social Housing Allocation Policy
The Allocation Policy published by Hillingdon, as required by section 166A of the Housing Act, and in force at the relevant time, is contained in a 48 page document dated December 2016. It states (paragraph 1.2):
“The Allocation Scheme is designed to meet all legal requirements and to support and contribute towards the Council's wider objective of putting residents first. The Council is also committed to preventing homelessness and the Allocation Scheme focuses on supporting residents to actively pursue suitable alternatives to avoid becoming homeless.”
At paragraph 2.2.4, the policy states that households who have not been continuously living in Hillingdon for at least 10 years will not qualify to join the housing register. A number of exceptions to that are set out. There is an exception for statutorily homeless persons and others within the ‘reasonable preference’ group identified in section 166A of the Act. Further provision is made, as the Act envisages, for prioritisation within this category, at paragraph 12 of the policy. This is by means of creating a tiered system of four Bands into which each category of ‘reasonable preference’ people are respectively divided. Paragraph 14.3 provides for applicants to receive an uplift equivalent to one priority Band if they have been continuously resident in Hillingdon for at least 10 years.
Paragraph 12.1 deals with the banding of homeless households. Internal prioritisation within this group is principally according to need. Top priority (Band A) is given to people in temporary accommodation where the landlord wants the property back. Next highest priority...
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