R TW, SW, and EM v London Borough of Hillingdon
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 13 July 2018 |
| Neutral Citation | [2018] EWHC 1791 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1119/2018 |
| Date | 13 July 2018 |
[2018] EWHC 1791 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/1119/2018
and
Ian Wise QC and Azeem Suterwalla (instructed by Hopkin Murray Beskine) for the Claimants
Kelvin Rutledge QC and Andrew Lane (instructed by LB Hillingdon) for the Defendant
Dan Squires QC (by way of written submissions only) for the Intervener
Hearing dates: 26, 27 and 28 June 2018
Approved Judgment
Introduction
The Claimants challenge the Social Housing Allocation Policy (December 2016) (“the Allocation Scheme”) of the London Borough of Hillingdon (“the Council”) in so far as it provides: (1) in para 2.2.4, a condition that only households with at least 10 years' continuous residence in-borough qualify to join the three welfare-based bands (A-C) of its housing register (“the residence qualification”); (2) in para 14.3, additional preference for such households who are in Bands C and B of the housing register (“the residence uplift”), and (3) in para 14.4, additional preference for those in Bands C and B who are working households on low income (“the working household uplift”).
The Claimants are all of Irish Traveller descent currently living in temporary accommodation in the London Borough of Hillingdon. TW, the First Claimant, is a woman, who is a lone parent, who cares for SW, the Second Claimant, her two-year-old daughter. EM, the Third Claimant, cannot work, on the grounds of his own disability and as a full-time carer for his three adult disabled children.
On 5 April 2018 Choudhury J granted permission on three grounds. First, that both the residence qualification and the residence uplift discriminate indirectly and unlawfully under ss.19 and 29 of the Equality Act 2010 (“ EA”) against persons with the protected characteristic of “race” and that, as Irish Travellers, the Claimants have such a characteristic ( Ground 1). Second, that the working household uplift discriminates indirectly and unlawfully under the same statutory provisions against persons with the protected characteristics of “disability” and “sex”, the former applying to EM's household and the latter to TW as a single parent ( Ground 2). Third, in formulating the three provisions under challenge the Defendant acted in breach of its obligations under s.11(2) of the Children Act 2004 (“CA”).
Mr Ian Wise QC and Mr Azeem Suterwalla appear for the Claimants, and Mr Kelvin Rutledge QC and Mr Andrew Lane for the Council. Mr Dan Squires QC, on behalf of the Equality and Human Rights Commission (“the Commission”), made written submissions limited to Ground 1. I have been considerably assisted by the submissions of Counsel.
The Legislative and Policy Framework
The allocation of social housing is substantially contained in Part 6 of the Housing Act 1996 (“HA”).
S.166A (“Allocation in accordance with allocation scheme: England”) provides, so far as is relevant:
“(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. For this purpose ‘procedure’ includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken.
(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 sub-section (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) 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).
The scheme may also be framed so as to give additional preference to particular descriptions of people within one or more of paragraphs (a) to (e) (being descriptions of people with urgent housing needs).
(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within sub-section (3); and the factors which the scheme may allow to be taken into account include—
(c) any local connection (within the meaning of section 199) which exists between a person and the authority's district.
(6) Subject to sub-section (3), the scheme may contain provision about the allocation of particular housing accommodation—
(b) to persons of a particular description (whether or not they are within sub-section (3)).
(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.”
Part 7 of the HA contains provisions relating to those who are homeless. By s.184(1) where an applicant presents himself to the authority and the authority have reason to believe that he may be homeless or threatened with homelessness, they must make such enquiries as are necessary to satisfy themselves whether he is eligible for assistance and if so what duty, if any, is owed to him under Part The fullest duty is owed once the authority is satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are satisfied that he did not became homeless intentionally (s.193(1)).
Accommodation provided under Part 7 is generally known as temporary accommodation whereas accommodation provided under Part 6 is generally known as settled accommodation. This claim is concerned with the allocation of accommodation under Part 6.
Hillingdon's Social Housing Allocation Policy (December 2016)
The key objectives of the Allocation Scheme, set out at para 1.2, are to:
• “Provide a fair and transparent system by which people are prioritised for social housing.
• Help those most in housing need.
• Reward residents with a long attachment to the borough.
• Encourage residents to access employment and training.
• Make best use of Hillingdon's social housing stock.
• Promote the development of sustainable mixed communities.”
Para 1.2 further states:
“The Council will register eligible applicants who qualify for the reasonable preference criteria and certain groups who meet local priority. In addition, the Council will ensure that greater priority through ‘additional preference’ is given to applicants who have a longer attachment to the borough, are working, … and childless couples.”
Paragraph 2 of the Allocation Scheme sets out eligibility and qualification rules for housing. The qualification rules include at para 2.2.4:
“ Households who have not been continuously living in the borough for at least 10 years and will not qualify to join the housing register
Applicants will need to demonstrate a local connection with Hillingdon. Local connection within the terms of this scheme will normally mean that an applicant has lived in Hillingdon, through their own choice, for a minimum of 10 years up to and including the date of their application, or the date on which a decision is made on their application, whichever is later.
For purposes of continuous residence, children spending time away from home for education due to periods of study such as at university and people who have moved away up to 3 times due to the requirements of their job will be disregarded. Secure, introductory or flexible tenants of Hillingdon Council and care leavers housed outside the borough will be considered as having a local connection with Hillingdon.
People will also be considered as having a local connection with Hillingdon when they are placed in the borough of Hillingdon in temporary accommodation in accordance with sections 190(2), 193(2), 195(2) or who are occupying accommodation secured by any local authority under section 192(3).”
There are ten exceptions to this qualification. One exception is for “Statutorily homeless persons and other persons who fall within the statutory reasonable preference groups (see paragraph 12 below)”.
Section 4 of the Allocation Scheme refers to the Council operating a ‘Choice Based Lettings Scheme’ through a central lettings agency known as “Locata”, and section 5 sets out how the Choice Based Lettings Scheme operates. It states:
“ 5.1 Priority Banding
Housing need is determined by assessing the current housing circumstances of applicants. A priority ‘band’ is then allocated according to the urgency of the housing need. There are three priority bands as follows
Band A – This is the highest priority band and is only awarded to households with an emergency and very severe housing need.
Band B – This is the second highest band and is awarded to households with an urgent need to move.
Band C – This is the third band, and the lowest band awarded to households with an identified housing need.
If following an assessment it is determined that an applicant has no housing need, they...
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