The King (on the application of Carly Jayne Willott) v Eastbourne Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Ellenbogen DBE |
| Judgment Date | 25 January 2024 |
| Neutral Citation | [2024] EWHC 113 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1423/2022; AC-2022-LON-000424 |
[2024] EWHC 113 (Admin)
Mrs Justice Ellenbogen
Case No: CO/1423/2022; AC-2022-LON-000424
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nick Bano (instructed by BHT Sussex) for the Claimant
Clare Cullen (instructed by Knights PLC) for the Defendant
Hearing dates: 21 and 24 February 2023
APPROVED JUDGMENT
This judgment was handed down remotely at 2pm on 25 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This judgment follows the full hearing of the Claimant's application for judicial review of the Defendant's decision, on review, dated 4 January 2022, by which it upheld its original decision, made on 9 February 2021, that the Claimant ‘does not qualify to join the housing register due to the ‘serious anti-social behaviour’ at her tenancy [address supplied]’. The challenge is advanced on six grounds, but, broadly put, on two alternative footings. The first is a challenge to the lawfulness of a rule which is said to disqualify applicants who have a poor history of anti-social behaviour, including those who are disabled within the meaning of the Equality Act 2010 (‘the EqA’), from joining the social housing waiting list. Should that challenge fail, the Claimant challenges the lawfulness of the Defendant's application of the rule in her case. The challenge comes about in the following circumstances.
With effect from 14 December 2015, the Claimant and her family occupied a house in Royal Sussex Crescent, Eastbourne, initially under an introductory tenancy and, subsequently under a secure tenancy within the meaning of section 79 of the Housing Act 1985 (‘the HA 1985’). An initial allegation of anti-social behaviour was made on 13 June 2016. A further complaint was made on 14 June 2018, following which the Defendant sent the Claimant a letter enclosing an acceptable behaviour contract. Notice seeking possession was served on 7 June 2019 and a claim for possession was issued on 17 July 2019. On 9 January 2020, the Defendant issued a claim for an injunction in respect of dogs at the property and a final injunction was granted on 28 September 2020, requiring that identified dogs be controlled, and be removed from the house should they bark for longer than 10 minutes. The order did not prevent the Claimant from keeping dogs.
On 27 January 2020, Ms Kim Barnes, a senior caseworker employed by the Defendant, made a safeguarding referral, stating that she had concerns about the Claimant's mental health. On 10 March 2020, Professor Fox, a professor of clinical psychiatry, completed a report on the Claimant, the key part of which read as follows:
Opinion
4.1 [The Claimant] is a 29 year old lady who is subject to a housing possession order and also in July 2019 her children were taken into care. Allegations have been made about her behaviour with neighbours and other antisocial behaviours. She has a history of disruptive behaviour going back to her childhood.
4.2 She has been diagnosed as having Adult ADHD and an autistic spectrum condition with which I concur.
4.3 Other diagnoses include Mixed Anxiety and Depressive Disorder (ICD-10 Code F41.2) and also Mild Alcohol Dependence (ICD-10 F10.2).
4.4 Her prognosis is somewhat guarded as Adult ADHD is a chronic condition. From the SWIFT reports and parallel case of child and family proceedings it has been assessed as severe, chronic and enduring.
4.5 With regard to alcohol, she has engaged with STAR in the last month and she does need to minimise her alcohol intake and also not use alcohol to cope with anxiety and some symptoms of autism. She needs to learn this. She has been offered rehabilitation but is yet to take this up. Until this is the case her prognosis will remain guarded.
4.6 With regard to mixed anxiety and depression, I believe that once she has managed to get on top of her alcohol difficulties and get through the childcare proceedings and her housing issues sorted out then it is likely her mood will improve.
4.7 She appears to have had difficulties with autism and ADHD for most of her life. Anxiety and depressive symptoms have occurred more recently with the difficulties she has been having and alcohol again is relatively recent in the last few years.
4.8 I believe she is disabled within the meaning of the Equality Act 2010. This relates to her ADHD and autistic spectrum condition because her difficulties have been present for more than a year and they are of a severe nature. They are also enduring.
4.9 There is treatment that could be suggested from a psychological perspective to assist her once she has managed to minimise her alcohol intake and she could benefit from a course of CBT looking at self-esteem and some of her emotional control issues; perhaps 6 to 12 sessions of treatment would be my initial recommendation and then further sessions as required.
Professor Fox did not (and had not been asked to) address whether the conduct of which complaint had been made, and which had led to the possession proceedings, had arisen in consequence of the disabilities which he had identified.
On numerous occasions, the Police had attended at the Claimant's property. Towards the end of March 2020, she had left the property, following complaints of anti-social behaviour. On 1 April 2020, the Police attended again, following reports of concerns about her safety on her return. Those had related to the behaviour of her former partner, Mr Walters, who has since died. The Police found Mr Walters at the house and he was served with a domestic violence protection order on 3 April 2020, the conditions of which banned him from contacting the Claimant, directly or indirectly. Nevertheless, Mr Walters was found by Police at the Claimant's house on 11 April 2020, and arrested, after a forced entry. On 1 May 2020, he and the Claimant were arrested at the property, she for affray and he for assault. Mr Walters was arrested at the property, once again, on 8 May 2020, for assaulting the Claimant. Bail conditions were set to prevent him from entering Eastbourne, or contacting the Claimant before 26 June 2020.
On 8 June 2020, Mr Walters was found by Police and arrested at the house. He was charged with assaulting a police officer and breach of his bail conditions. The Claimant was also charged with various offences and the dogs were removed from the house. On 18 June 2020, she pleaded guilty to those offences (assault and obstruction of police officers, and being in charge of a dog dangerously out of control). On 16 June 2020, an order was made requiring that all three of the Claimant's children reside permanently with their father. On 1 August 2020, Mr Walters was found by Police hiding in an upstairs cupboard at the Claimant's house. The Claimant's dogs were released by Police into the care of her mother, at the beginning of August 2020. On 3 September 2020, the Defendant received a report that dogs could be heard at the Claimant's house. On 28 September 2020, following a two-day trial, the Deputy District Judge declined to make a possession order, on the basis that the Defendant had not, at that stage, discharged its public sector equality duty.
On 24 November 2020, the Claimant applied, online, to join the Defendant's housing register. That application was rejected by letter dated 9 February 2021, which, it would appear, did not come to the Claimant's attention at that time. The Defendant relied upon the terms of its allocation policy (considered further below) in concluding that the Claimant did not qualify to join the register, going on to state, ‘We are aware that Eastbourne Homes, as the managing agent for Eastbourne Borough Council, has recently taken your case to court due to Anti-Social Behaviour (ASB) perpetrated by yourself and a visitor to your home. The allocations team are also aware possession was not awarded to the landlord, but Eastbourne Homes have appealed this decision and are still awaiting an outcome. Since the court hearing you have been served with a Community Protection Warning Letter due to further ASB. When the appeals process is completed, you may ask for a review of the decision to refuse your application to join the housing register.’
On 18 August 2021, on appeal, His Honour Judge Simpkiss found that the Deputy District Judge had been wrong to conclude that the Defendant had not discharged its public sector equality duty, and granted an order for possession by 29 September 2021. In the event, the Claimant was evicted from the property on 15 March 2022.
On 1 October 2021, the Claimant requested a review of the Defendant's original decision. On 16 December 2021, she approached the Defendant, requesting assistance as a homeless applicant, pursuant to Part 7 of the Housing Act 1996 (‘the HA 1996’). She stated that she was homeless from her parents' address, following an incident with her father, and that bail conditions prevented her from residing there. On 23 December 2021, the Claimant was placed by the Defendant in interim accommodation, under section 188 of the HA 1996.
As previously noted, the decision taken on review, challenged in these proceedings, was dated 4 January 2022.
The decision under challenge
In his sixteen-page letter upholding its original decision, the decision-maker, Mr Gary Hall, Head of Homes First, relied upon the Defendant's allocation policy, dated June 2018, identifying the relevant aspects of that policy as being:
a. (at pages 8 to 9):
‘Other applicants, who do not qualify to join the register
d) Applicants whose anti-social behaviour (ASB) is serious enough to make them unsuitable to be a tenant (“the ASB...
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