R Teresa Ward and Others v The London Borough of Hillingdon
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lady Justice King,Lord Justice Underhill |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWCA Civ 692 |
| Docket Number | Case No: C1/2018/1285 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 2019 |
and
and
[2019] EWCA Civ 692
Lord Justice Underhill
(VICE PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION)
Lord Justice Lewison
and
Lady Justice King
Case No: C1/2018/1285
Case No: C1/2018/1971
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Mr Justice Supperstone
CO/1119/2018
Mr Justice Mostyn
CO/3461/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ian Wise QC & Mr Azeem Suterwalla (instructed by Hopkin Murray Beskine) for the Respondents Teresa Ward & Ors in the first appeal
Mr Jamie Burton (instructed by Osbornes Solicitors LLP) for the Appellant Yilmaz Gullu in the second appeal
Mr Kelvin Rutledge QC & Mr Andrew Lane (instructed by London Borough of Hillingdon in both appeals) for the Appellant in the first appeal and the Respondent in the second appeal
Mr Dan Squires QC & Mr Chris Buttler (instructed by the Equality and Human Rights Commission) for the Intervener in both appeals
Hearing dates: 3 rd and 4 th April 2019
Approved Judgment
The issue
Hillingdon LBC's housing allocation policy provides that, subject to exceptions, a person who has not been continuously living in the borough for at least 10 years will not qualify to join the housing register. One of the exceptions is that an unintentionally homeless person who does not satisfy the residence requirement is entitled to join the register; but is placed in band D. Two challenges were brought against the lawfulness of that policy, on the ground that it is indirectly discriminatory on the ground of race; and cannot be justified. One, by Irish Travellers, succeeded before Supperstone J ( R (TW) v London Borough of Hillingdon [2018] EWHC 1791 (Admin), [2018] PTSR 1678). The other, by a Kurdish refugee of Turkish nationality, failed before Mostyn J ( R (Gullu) v London Borough of Hillingdon [2018] EWHC 1937 (Admin), [2019] HLR 4). Since the courts below reached different answers on substantially the same challenge, I granted permission to appeal. Mr Wise QC, for TW and EM as they were known below, did not pursue any claim that they should be anonymised in this court.
The basic legislative framework
Section 166A of the Housing Act 1996 requires every housing authority in England to have an allocation scheme for determining priorities in allocating housing accommodation. The section goes on to provide (so far as relevant):
“(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 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 such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); and
(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).
(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 of 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.
(7) The Secretary of State may by regulations—
(a) specify further descriptions of people to whom preference is to be given as mentioned in subsection (3), or
(b) amend or repeal any part of subsection (3).
(8) The Secretary of State may by regulations specify factors which a local housing authority in England must not take into account in allocating housing accommodation.
(11) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.
(14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.”
Section 199 defines a “local connection”:
“(1) A person has a local connection with the district of a local housing authority if he has a connection with it—
(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice,
(b) because he is employed there,
(c) because of family associations, or
(d) because of special circumstances …
(6) A person has a local connection with the district of a local housing authority if he was (at any time) provided with accommodation in that district under section 95 of the Immigration and Asylum Act 1999 (support for asylum seekers).”
Regulations now require that additional preference be given to former members of the armed services: Housing Act 1996 (Additional Preference for Armed Forces) (England) Regulations 2012.
Amendments to the Act made by the Localism Act 2011 precluded housing authorities from allocating housing to persons who were ineligible. Such persons were defined in the section itself; and the Secretary of State was given power to specify additional categories of such persons. But, subject to that, a housing authority could decide for itself what classes of persons are, or are not, qualifying persons: section 160ZA (7). A person who is subject to immigration control is ineligible, unless they fall within a class of person prescribed by regulation. The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 provide for four classes of person subject to immigration control who are, nevertheless, eligible. Class A consists of:
“a person who is recorded by the Secretary of State as a refugee within the definition in Article 1 of the Refugee Convention and who has leave to enter or remain in the United Kingdom.”
All eligible persons included in the “reasonable preference” groups must be treated as qualifying for inclusion in the allocation policy. But section 166A (3) does not allocate priorities as between the preference groups listed in that sub-section. That is dealt with by section 166A (5), which enables the housing authority itself to determine priorities. So there is no general impediment to a housing authority placing some preference groups in different bands within the scheme: R (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438, [2015] PTSR 822 at [26] – [27] and [50]. Equally, compliance with section 166A (5) does not guarantee success in being allocated housing; because in many if not most districts demand for accommodation exceeds supply: R (Lin) v Barnet LBC [2007] EWCA Civ 132, [2007] HLR 30.
In exercising their powers under Part 6 of the Act, housing authorities must have regard to guidance issued by the Secretary of State: Housing Act 1996, section 169 (1). The Secretary of State issued guidance in 2012. The relevant part of it is as follows:
“3.22 When deciding what classes of people do not qualify for an allocation, authorities should consider the implications of excluding all members of such groups. For instance, when framing residency criteria, authorities may wish to consider the position of people who are moving into the district to take up work or to escape violence, or homeless applicants or children in care who are placed out of borough.”
The Secretary of State issued further guidance in 2013. The relevant parts of that guidance are as follows:
“12. The Government is of the view that, in deciding who qualifies or does not qualify for social housing, local authorities should ensure that they prioritise applicants who can demonstrate a close association with their local area. Social housing is a scarce resource, and the Government believes that it is appropriate, proportionate and in the public interest to restrict access in this way, to ensure that, as far as possible, sufficient affordable housing is available for those amongst the local population who are on low incomes or otherwise disadvantaged and who would find it particularly difficult to find a home on the open market.
13. Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant's household) to have lived within the authority's district for a specified period of time in order to qualify for an allocation of social housing. The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years.
16. Whatever qualification criteria for social housing authorities adopt, they will need to have regard to their duties under the Equality Act 2010, as well as their duties under other relevant legislation such as s.225 of the Housing Act 2004.
18. Housing authorities should consider the need to provide for exceptions from their residency requirement; and must make an exception for certain members of the regular and reserve Armed Forces – see further at paragraph 23 below. Providing for appropriate exceptions when framing residency...
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