R Quintero v Royal Borough of Kensington & Chelsea
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 05 March 2013 |
| Neutral Citation | [2013] EWHC 1394 (Admin) |
| Date | 05 March 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9540/2012 |
[2013] EWHC 1394 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
John Howell, QC
(Sitting as a Deputy High Court Judge)
CO/9540/2012
Mr Stephen Knafler QC and Toby Vanhegan (instructed by Battersea Law Centre) appeared on behalf of the Claimant
Mr Matt Hutchings (instructed by K Chelsea Legal) appeared on behalf of the Defendant
THE DEPUTY JUDGE:
This is a renewed application for permission to claim judicial review. Permission was refused on the papers by his Honour Judge Vosper on December 12 2012.
The claimant is a naturalised British citizen. In 2008 he married Ana Maria Lopez Guitierrez, who is a Colombian national. His wife had leave to remain as his spouse until August 3 2012 and she applied before the expiry of that leave for indefinite leave to remain.
On September 28 2011 the claimant applied to the Council of the Royal Borough Kensington and Chelsea for housing assistance under Part 7 of the Housing Act 1996 as he was homeless and for rehousing under Part 6 of that Act. He and his wife were provided with interim accommodation pending a decision on his application in the form of a non-secured tenancy of a flat on October 14 2011. The Council subsequently decided on October 20 2011 that he was owed a duty to secure if accommodation became available for his occupation under section 193(2) of the Housing Act 1996 as his wife was pregnant. However, the Council also decided to discharge that duty by making a offer of private accommodation under section 193(7AA) to (7AD) of the 1996~Act as he had to rely on the fact that his wife was pregnant to establish a priority need and as she was subject to a condition of non-recourse to public funds. That made her a so-called "restricted person." It has also made his case a restrictive case namely, one in which the authority would not have been under such a duty without regard to a "restricted person."
The claimant was also placed on the housing register, having a priority as from October 2011. He was awarded 200 points. 100 of these were for "duty accepted homeless in temporary accommodation." Normally, a local housing authority has to give a reasonable preference in allocating social housing to those to whom it owes a duty under section 193(2) of the 1996 Act. The Council does that by awarding points in such cases to those to whom it owes a duty when the application to it for assistance under the homelessness legislation is made as set out in their allocation scheme.
At that time, however, the Council's allocation scheme did not reflect the requirement then contained in section 167(2ZA) of the Housing Act 1996 to disregard, when giving a reasonable preference to those who are owed any duty under section 193(2), those who would not have been owed such a duty if no regard was had to a "restricted person." Had it complied with that requirement, the Council considers that the claimant would have been awarded no points since the duty under section 193(2) was only owed by virtue of the fact that his wife, who was a "restricted person," was pregnant.
The claimant and his wife now have a daughter born in December 2011 who is a British citizen. She became included in his housing application in January 2012.
The Council subsequently decided to bring its allocation scheme into line with the relevant legislation.
The claimant seeks to impugn the Council's decision on June 11 2012 to remove his reasonable preference points. If that decision was lawful, given the relevant legislation, he seek seeks a declaration that section 167(2ZA) of the Housing Act 1996 is incompatible with article 14 of the European Convention of Human Rights when taken with article 8 of that Convention. I should note that section 167(2ZA), although still in force in Wales, has been reenacted in England as section 166A(4).
It is convenient to consider what at least arguably that subsection provides and whether at least arguably it may be incompatible with Convention rights, since the claimant's argument ultimately depends on allegations that the result in this case is incompatible with relevant Convention rights.
For this purpose, I refer to the legislation as it is now embodied in section 166A provides that:
(1) 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.
(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 housing authority under section 193(2)… or who are occupying accommodation secured by any such authority under section 192(3).
(4) People are to be disregarded for the purpose of subsection (3) if they would not have fallen within the paragraph (a) or (b) of that subsection without the local housing authority having had regard to restricted person (within the meaning of Part 7)."
In my judgment, it is clear that the effect of sub-section (4) is that if that a person would not have fallen within paragraphs (a) or (b) subsection (3) without the local housing authority having regard to a "restricted person," then they are not to be given a preference in the allocation of social housing on that basis. Whether or not they are to be given a preference, thus depends on the situation when they are homeless, when they are owed a relevant duty or when they are occupying accommodation under section 192(3) of the 1996 Act.
Mr Knafler sought to contend that not giving a person a preference because regard was had to a "restricted person" or at least a "restricted person" who is pregnant with a child who will be a British citizen once borne, is incompatible with articles 8 and article 14 of the ECHR.
For present purposes it can be assumed that a scheme for access to housing arranged by public authority, such as the system for the allocation for social housing, falls within the ambit of article 8. The claimant contends that he was subject to discrimination contrary to article 14.
He seeks to rely on the decision of the Court of Appeal in Morris and the City of Westminster [2005] EWCA Civ 1184 [2006] 1 WLR 505. In that case the Court of Appeal had to consider the provisions of the homelessness legislation that meant that a person who had to rely on a "restricted person" to establish a priority need was to be treated as not having any such need, with the result that the local authority was under no duty to secure that any accommodation became available for their occupation. That legislation was subsequently amended so that such a person now has a priority need as in this case. In the cases under consideration by the Court of Appeal, however, a British citizen who had a dependent child was denied help because that child was subject to immigration control, and therefore, a "restricted person." The Court of Appeal found that denying the British citizen a priority need, and thus accommodation for both when homeless, was incompatible with their Convention rights.
The relevant case law, however, does not stop there. The ground upon which a person is subject to a difference in treatment, when access to benefits depends on the status of a dependent with leave subject to a provision of "no recourse to public funds," was considered by the European Court of Human Rights in Bah and the UK (2012) 54 EHRR 21. In that case the adult had indefinite leave to remain. Her son had been granted leave subject to the provision of "no recourse to public funds." The European Court of Human Rights held that difference in treatment arose from this conditional legal status not from the dependent's national origin, see at~[44]. That court further stated:
"47…Given the element of choice involved in immigration status, therefore, while differential treatment based on this ground must still objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example,...
To continue reading
Request your trial