The King (on the application of TX) v Adur District Council
| Jurisdiction | England & Wales |
| Judge | Margaret Obi |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3340 (Admin) |
| Docket Number | Case No: CO/160/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 3340 (Admin)
Margaret Obi
(sitting as a Deputy High Court Judge)
Case No: CO/160/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lindsay Johnson (instructed by Hopkin Murray Beskine) for the Claimant
Catherine Rowlands (instructed by Adur District Council) for the Defendant
Hearing date: 9 November 2022
APPROVED JUDGMENT
Introduction
This is an application for judicial review of Adur District Council's (‘the Defendant's’) housing allocations policy (‘the policy’), insofar as it operates to preclude applicants in the Claimant's position, from being placed in the highest bands. The policy was first adopted in 2007. The current version is dated 6 February 2014. In accordance with the policy, those applicants who are permitted to join the housing register, are placed in one of four bands: A, B, C, or D. These bands reflect priority needs. Therefore, those in Band A have priority over those in Band B, and so on.
The Claimant has made three judicial review claims in respect of her application to the Defendant for housing. Following the first judicial review claim, ‘JR1’, the Claimant was accepted on the Defendant's housing register and placed in Band C. The present proceedings emanate from the second judicial review claim, relating to the decision to limit the Claimant to Band C. However, the Claimant was subsequently informed by the Defendant, on 8 July 2022, that she had been placed in Band D, due to outstanding housing-related debt. The Claimant requested a review of that decision, and her reduced banding is currently the subject of a separate judicial review claim — ‘JR3’.
The Claimant is a survivor of domestic abuse. She asserts that limiting her to Band C amounts to indirect discrimination, contrary to section 19 of the Equality Act 2010. In the alternative, it violates Article 14 of the European Convention on Human Rights (‘ECHR’), when read with Article 3 and/or Article 8, as without objective and reasonable justification, it fails to treat differently, persons whose situations are significantly different (see — Thlimmenos v Greece (2000) 31 EHRR 12).
These proceedings commenced in January 2022. Upper Tribunal Judge Church refused permission on the papers on 25 February 2022. A renewed application was considered by Richard Hermer KC (sitting as Deputy High Court Judge) on 28 April 2022; he also refused permission. However, on 14 July 2022, Popplewell LJ allowed an appeal against that refusal on limited grounds. He concluded that it is arguable that the Defendant's policy, discriminates against those in the Claimant's position, and granted permission on that basis. Permission was granted to pursue other grounds, only to the extent that the policy was discriminatory.
The Relief Sought
The Claimant invites the court to:
i. declare that the Defendant's policy unlawfully discriminates against those who are fleeing domestic abuse; and
ii. quash the decision made by the Defendant on 13 October 2021 (‘the Decision Letter’) and remit it for reconsideration.
Preliminary applications
Mr Johnson, on behalf of the Claimant, made two preliminary applications. The first application was to adduce additional witness statements from the Claimant and a trainee solicitor from Hopkin Murray Beskine, in response to points raised by the Defendant, in their evidence and detailed grounds. An application notice had been filed on 8 September 2022. In response to that application, Ms Rowlands invited the court to permit additional evidence from the Defendant's Homelessness Team Leader and the Homelessness Intervention and Prevention Officer. However, her primary submission was that additional evidence was not required from either party, as it is not relevant to the issues to be determined.
The application to admit the additional witness statements was provisionally granted, on the basis that I would determine their relevance and weight, if any, as and when the need arises.
Mr Johnson's second application was for the Claimant to be granted anonymity, which was opposed by Ms Rowlands.
For reasons I gave orally, I granted the anonymity application, notwithstanding the importance of open justice. The application was granted, due to the Claimant's history as a survivor of domestic abuse, and the ongoing risk to her safety as set out in her witness statements. I was satisfied that:
i. Non-disclosure of the identity of the Claimant is necessary (a) to secure the proper administration of justice, and (b) to protect her right to respect for private and family life under Article 8 of the ECHR; and
ii. there is no sufficient countervailing public interest in disclosure ( CPR 39.2(4)).
The Order prevents publication of the name and address of the Claimant, her former home and address, her current location, and any other details which may lead to the identification of the Claimant or members of her family. The Order also restricts access by non-parties, to documents in the court record, other than those which have been anonymised.
Background
There are disputes between the parties about some aspects of the complex factual matrix. However, the core background to this claim is not materially in dispute and can be summarised as follows.
The Claimant has a long-standing history of mental health illness including a history of suicidal ideation and attempts at suicide via various means. She has been prescribed medication for her mental health and is under the care of a mental health team. The Claimant is originally from the Defendant's area and her family continues to live there. She is the tenant of a property in Brighton, let to her by Brighton & Hove Council. She fled that property in November 2020, following domestic abuse from her partner. She went to live with her mother in the Defendant's area. She applied to the Defendant as homeless and made an application to be placed on the Defendant's housing register for permanent accommodation.
On 8 April 2021, the Defendant accepted the initial housing duty towards the Claimant under section 189B of the Housing Act 1996 (‘the Act’). In September 2021, the Defendant accepted the main housing duty under section 193(2) of the Act. The Claimant, after her claim was lodged, remained in accommodation arranged by the Defendant until she left, on or around 1 August 2022, citing a fear of violence.
As stated above, following JR1, the Claimant was accepted on the Defendant's housing register and placed in Band C. The Defendant in a letter dated 10 August 2021 agreed to treat the Claimant as having requested a review of that banding. The outcome of that review is the Decision Letter dated 13 October 2021. The Decision Letter informed the Claimant that she would meet the criteria for Band C7 (a sub-category within Band C) which states:
“ Other unsatisfactory housing conditions (eg those with no fixed address, living with family or friends, lacking or sharing facilities, disrepair that cannot be easily remedied.”
The Decision Letter also refers to a medical report and states that:
“ From the information provided there is no clear evidence that the housing conditions are having any adverse effect on the applicant's medical conditions, therefore no medical priority applies.”
The Decision Letter concludes as follows:
“I would like to point out that under the qualification criteria (section 3.3.3) of the Register of Housing Need and Choice Based Lettings Policy, people who have not lived or worked in the area on a continuous basis for the last two years, but have a local connection to the area and an overriding need to move to the area will only be assessed as a band C or D. Your address history on your application form states that you were living at [tenancy address] up until 07/04/2021. I do however, believe that you should remain on the Housing Register … as you had to leave your accommodation in Hove due to an abusive partner and you feel that it is not safe for you to return to this property.”
In accordance with the pre-action protocol, the Claimant's solicitor sent a letter to the Defendant on 15 December 2021. A reply was received on 21 December 2021, restating that under paragraph 3.3.3(d) of the policy, the Claimant could only qualify for Bands C or D. In the same letter the Defendant also stated:
“ The fact that [the Claimant] has been accepted onto the register is acknowledgment of the facts that give rise to her exceptional admission to the register and also to the main housing duty. However, that does not dictate that paragraph 3.3.3(d) should be disregarded.
Further Developments Since the Hearing
There have been two further developments following the hearing on 9 November 2022. First, the Claimant has been offered new temporary accommodation in Worthing. Second, the Defendant has completed its review of the Band D decision and upheld that decision.
Both parties have provided written post-hearing submissions with regard to these developments. As well as a dispute between the parties as to the reason the Claimant was originally placed in Band C, there is also a dispute concerning the impact of the new developments on the matters with which the court is concerned.
I will address these issues below, but first I turn to the allocation policy and the key legal principles relevant to this claim.
The Defendant's Allocation Policy
The Defendant operates a “ Choice-based Lettings Policy” which is intended to make the best use of social housing in the Defendant's area, match available housing to those most in need, and give people a more personal choice about where they wish to live.
The Defendant is in the process of consulting on a new allocation policy. The draft...
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