The King (on the application of RR) v The London Borough of Enfield

Hearing dates: 25 July 2024

Approved Judgment

Introduction

These judicial review proceedings are concerned with the obligations of the local housing authority pursuant to the provisions of part 6 of the Housing Act 1996 (“HA 1996”).

The proceedings were initially brought on 18 August 2023 by the claimant (“RR”) against the defendant, the London Borough of Enfield (“Enfield”).

An anonymity order was granted on the papers in favour of the claimant by Roger ter Haar KC, sitting as a Deputy High Court Judge. He adjourned the application for permission to bring the judicial review proceedings on the basis that the proceedings might be rendered academic, in whole or in part, as a consequence of the request for a statutory review of the suitability of the accommodation being offered by the defendant.

The application then came before Benjamin Douglas-Jones KC, sitting as a Deputy High Court Judge, again on the papers, on 29 November 2023. In light of the decision of the Supreme Court in R (Imam) v London Borough of Croydon[2023] UKSC 45, published that day, an order was made for both RR to file and serve an amended statement of facts and grounds and for Enfield to file and serve an amended summary grounds of resistance.

Permission to bring judicial review proceedings against Enfield was granted on the papers, in light of the amended grounds of both RR and Enfield, by Andrew Burns KC, sitting as a Deputy High Court Judge, on 5 February2023.

I heard this matter on 24 July 2024 and since that date I have received further written submissions. I have also been informed that, in pursuance of its obligations under part 7 of the HA 1996, Enfield offered, and RR has accepted, alternative suitable accommodation. That does not impact upon the judicial review proceedings which are concerned with part 6 of the HA 1996. I am sorry that this judgment has not been as prompt as I would have expected, but the parties have been informed of the difficulties.

The challenge

RR challenges Enfield's scheme for the allocation of social housing.

RR contends that the scheme for allocation of social housing operated by Enfield is unlawful both on a public law basis but also, more specifically as it is said to be contrary to anti-discrimination legislation. I will set out the grounds below, having dealt first with the factual background.

Factual Background

RR is now aged 39 (date of birth, 31 March 1985) and is a married man with two young children, aged 4 (date of birth, 12 April 2020) and 1 (date of birth, 1 June 2023), and acts as a full-time carer for his wife (known as “ED” for these proceedings). He arrived as a refugee from Iran approximately 25 years ago. He married ED and their first child was born on 12 April 2020. ED applied for and was granted the right to join RR as his spouse on 10 March 2021. Unfortunately, a few days after that decision, ED was very seriously injured in a car accident in Iran when she sustained brain damage and life-changing physical injuries including a fractured pelvis, liver damage, spleen removal, a broken left collar bone, broken ribs and a bleed into the lungs.

These injuries have caused her mobility problems, problems with her vision and dizziness, and have put her in constant pain in her legs, lower back and pelvis. RR had flown to be with ED in Iran immediately after the accident until she was well enough to travel to the UK. Prior to his wife's arrival in the UK with their young child, and ED settling as a permanent resident in October 2022, RR states that he was working as a taxi driver and planning to train as a lorry driver. When she came to the UK, RR became ED's primary carer, and was therefore unable to work. The occupational therapist has set out that ED suffers from leg cramps which can cause her to lose power in her legs and fall; she has little power in her left arm, and is unable to lift it above shoulder level, which limits her ability to grip and her ability to wash and get dressed independently. Her brain injury appears to have heightened her emotions and she can become very upset and frustrated.

The occupational therapy (“OT”) assessment from Caroline Logan, dated 7 September 2023, sets out in detail the extent to which ED requires RR's support and assistance with her daily living, including washing and dressing and transfers to and from the bath and toilet. In summary, the OT set out that ED not only has physical injuries and limitations, but that she also sustained brain damage and has sensory issues. The recommendation was for ground floor accommodation with a wet room.

On 8 November 2022 an application was made by RR and ED for housing assistance from Enfield. Enfield treated that as an application for homelessness assistance pursuant to the provisions of part 7 of the HA 1996, but also placed RR onto the housing register (pursuant to the provisions of part 6 of the HA 1996). It is said by Enfield that RR has not made a housing register application and has not completed forms with respect to the health and well-being consideration. However, the decision letter of 23 May 2023 indicated that there was a housing register application which was assessed on 20 February 2023 for which RR was awarded 200 points. ED was granted access to benefits by the Home Office on 14 April 2023.

Enfield initially provided bed and breakfast accommodation, between 18 November and 9 March 2023. On 17 February 2023, Enfield accepted that it owed the family of RR the main housing duty and on 20 February 2023 accepted the application of RR's family to join the allocations scheme. As they were living in temporary accommodation, the family were awarded 200 points for being in the “Homeless or threatened with homelessness” cohort.

In March 2023, and subsequent to a pre-action protocol letter sent on 8 March 2023, the family were moved into a small one-bedroomed flat as temporary accommodation allocated pursuant to the provisions of section 193(2) of the HA 1996, which RR said was extremely difficult to live in given ED's needs and disabilities

On 16 March 2023 RR challenged the decision to award them only 200 points, as they were occupying temporary accommodation, and sought a review of the 200 points awarded as he contended that he ought to have been granted a medical and welfare priority.

In the review decision, Enfield determined that as RR and his family fell within the “Homeless or threatened with homelessness” cohort, that meant they fell outside the “health and wellbeing” cohort and were not entitled to further preference in respect of either health or well-being.

The second child of RR and ED was born on 1 June 2023 and Enfield determined at that time that the one-bedroomed flat that the family were being housed in was not suitable. The alternative accommodation initially offered by Enfield was not considered suitable. Enfield has (subsequent to the hearing of this challenge) now provided alternative accommodation, which I understand has been accepted by RR.

The current offer of temporary accommodation, which has been accepted, does not render academic the part 6 challenge.

The Allocation Scheme

RR challenges the allocations scheme operated by Enfield as being unlawful. The challenge is based upon the way in which, it is said by RR, the allocations scheme treats those who benefit from temporary accommodation and how that disadvantages them when seeking allocation of permanent accommodation pursuant to part 6 of the HA 1996.

The interrelationship of parts 6 and 7 of the HA 1996 and the way in which those parts deal with two separate duties was recognised by the Supreme Court in R (Imam) v Croydon LBC[2023] UKSC 45:

“Parts 6 and 7 of the Act deal with different topics and it has been observed that the duty to secure that accommodation is available for a homeless family under section 193(2) is “quite separate from” the allocation of council housing under Part 6: Birmingham City Council v Ali[2009] UKHL 36. [2009] 1 WLR 1506 (“ Ali”), paras 14 and 47 (Baroness Hale of Richmond). But they interact.” Per Lord Sales

Section 166A of the HA 1996 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. For this purpose “procedure” includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken”

and, by virtue of section 166A(14) a local authority is prohibited from allocating housing accommodation other than in accordance with their allocation scheme.

Section 166A(3) provides that, subject to subsection (4), the scheme shall be framed so as to give reasonable preference to people who are homeless, within the meaning of part 7 (s.166(3)(a)); people who are owed a duty by any local authority under section 190(2), 193( 2) or 195(2) (or under section 65( 2) or 68(2) of the HA 1985, or are occupying accommodation secured by the local authority under section 192(3) of the HA 1996 (s.166A(3)(b)) that is, people who are owed the main housing duty; and people who need to move on medical or welfare grounds (including any grounds relating to a disability) (s.166A(3)(d)).

The Enfield allocations scheme (“the allocations scheme”) was...