R HA v London Borough of Ealing
| Jurisdiction | England & Wales |
| Judge | Mr Justice Goss |
| Judgment Date | 07 August 2015 |
| Neutral Citation | [2015] EWHC 2375 (Admin) |
| Docket Number | Case No: CO/1056/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 August 2015 |
[2015] EWHC 2375 (Admin)
Mr Justice Goss
Case No: CO/1056/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Wise QC and Mr Broach (instructed by Hopkin Murray Beskine Solicitors) for the Claimant
Mr Beglan (instructed by Legal Services) for the Defendant
Hearing dates: 28 th and 29 th July 2015
Introduction
There is a shortage of housing in certain regions. In such areas, the demand for social housing exceeds supply and has done so for some time. This is a claim for Judicial Review of the Defendant's revised Housing Allocations Policy dated October 2013 ("the policy") and its decision dated 8.12.14 relating to the application of that policy to the Claimant's case ("the decision"). Permission to bring this claim was granted on the papers on 14 th April 2015, it being conceded that the claim was arguable. An expedited hearing was ordered. On 2 nd July 2015, the Claimant was granted permission to rely on additional evidence, namely the witness statement of Polly Neate of the charity, Women's Aid.
The Claimant is a mother of 5 children aged 17, 15, 10, 9 and 6 years respectively at the date of the decision. They are victims of domestic violence. Together with the children, she left the London Borough of Hounslow to escape further domestic violence in February 2014. On 9 June 2014 the Defendant accepted a full housing duty to her under section 193 (within Part VII) of the Housing Act 1996 (unintentionally homeless) and offered her accommodation on 17 November 2014. That accommodation was and is unsuitable for the size of the family; the Defendant has relatively recently withdrawn its decision that the accommodation was suitable. She awaits an offer of suitable accommodation.
The Claimant applied 'online' for accommodation in Ealing under Part VI of the Housing Act 1996 (as amended) ('the Act') on 4 December 2014. Her application to join the Defendant's Housing Register was rejected in a 'pro forma' letter dated 8 th December 2014, the relevant part of which informed her that:
"Following changes to the Allocation Scheme, you do not appear to be currently eligible to join the Housing Register at this time. The changes include:
…
• Households will not be able to register for housing in future unless they are able to demonstrate that they have been resident in the borough for five years.
…
Your online application has been removed."
Although the reason for her ineligibility is unstated, it is clear that the operative fact was her not having been resident in the borough for five years. No indication was given as to whether consideration was given to the particular facts of her and her family's case or as to whether the exceptionality provision within the Defendant's policy, to which I shall refer later, may have applied to her or her children.
The six grounds advanced by the Claimant in support of her claim can be conveniently grouped under four main headings:-
A. The policy is contrary to the statutory scheme provided for by Part VI of the Housing Act 1996 (as amended) by establishing an absolute exclusion from the housing register for those who do not meet the residency requirement (Ground 1).
B. The residency requirement in the policy unlawfully discriminates against women who are victims of domestic violence (Grounds 4 and 5).
C. The policy and the decision in the Claimant's case were taken in breach of the Defendant's obligations under section 11 of the Children Act 2004 (Ground 7).
D. The Defendant failed to apply or consider applying the exceptionality provision in the policy in taking the decision in the Claimant's case, thereby fettering its discretion (Grounds 2 and 3).
Ground 6, an alleged violation of Article 1, Protocol 1 is not pursued.
The statutory framework
The statutory code dealing with allocation of accommodation is contained in Part VI of the Act. The principal relevant provisions are sections 159, 160ZA, 166A and 169. They provide as follows:
Section 159:
"Allocation of housing accommodation
(1) A local housing authority shall comply with the provisions of this Part in allocating housing accommodation.
…
(7) Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate."
Section160ZA
"Allocation only to eligible and qualifying persons: England
(1) A local housing authority in England shall not allocate housing accommodation—(a) to a person from abroad who is ineligible for an allocation of housing accommodation by virtue of subsection ( 2) or (4), or (b) to two or more persons jointly if any of them is a person mentioned in paragraph (a).
(2) A person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is ineligible for an allocation of housing accommodation by a local housing authority in England unless he is of a class prescribed by regulations made by the Secretary of State.
(3) No person who is excluded from entitlement to housing benefit by section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) shall be included in any class prescribed under subsection (2).
(4) The Secretary of State may by regulations prescribe other classes of persons from abroad who are ineligible to be allocated housing accommodation by local housing authorities in England.
(5) Nothing in subsection ( 2) or (4) affects the eligibility of a person who falls within section 159(4B).
(6) Except as provided by subsection (1), a person may be allocated housing accommodation by a local housing authority in England (whether on his application or otherwise) if that person –
(a) is a qualifying person within the meaning of subsection (7), or
(b) is one of two or more persons who apply for accommodation jointly, and one or more of the other persons is a qualifying person within the meaning of subsection (7).
(7) Subject to subsections (2) and (4) and any regulations under subsection (8), a local housing authority may decide what classes of persons are, or are not, qualifying persons.
(8) The Secretary of State may by regulations—(a) prescribe classes of persons who are, or are not, to be treated as qualifying persons by local housing authorities in England, and (b) prescribe criteria that may not be used by local housing authorities in England in deciding what classes of persons are not qualifying persons.
(9) If a local housing authority in England decide that an applicant for housing accommodation—(a) is ineligible for an allocation by them by virtue of subsection ( 2) or (4), or (b) is not a qualifying person, they shall notify the applicant of their decision and the grounds for it.
(10) That notice shall be given in writing and, if not received by the applicant, shall be treated as having been given if it is made available at the authority's office for a reasonable period for collection by him or on his behalf.
(11) A person who is not being treated as a qualifying person may (if he considers that he should be treated as a qualifying person) make a fresh application to the authority for an allocation of housing accommodation by them."
Section166A
"Allocation in accordance with allocation scheme
(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.
…
(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).
(4) …
(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.
(6) Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation—(a) to a person who makes a specific application for that accommodation; (b) to persons of a particular description (whether or not they are within subsection (3)).
(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...
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