The Queen (on the application of Yilmaz Gullu) v The London Borough of Hillingdon
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 26 July 2018 |
| Neutral Citation | [2018] EWHC 1937 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3461/2016 |
| Date | 26 July 2018 |
[2018] EWHC 1937 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: CO/3461/2016
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Jamie Burton (instructed by Osbornes) for the Claimant
Kelvin Rutledge QC and Andrew Lane (instructed by LB of Hillingdon (Legal)) for the Defendant
Dan Squires QC (instructed by The Equality and Human Rights Commission) for the Intervener (in writing)
Hearing dates: 17–18 July 2018
Judgment Approved
See Order at bottom of this judgment.
The aim of the Localism Act 2011 is to facilitate the devolution of decision-making powers from central government to local communities.
One devolved power concerns the provision of social housing under Part VI of the Housing Act 1996. This was amended by the 2011 Act to allow a local housing authority to decide what classes of persons are, or are not, qualifying persons for the receipt of social accommodation (see the new section 160ZA(6) and (7)). Section 147 of the 2011 Act inserted a new section 166A into the 1996 Act. This provides, so far as is material to this case:
“(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.
…
(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).
The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of people with urgent housing needs).
…
(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:
…
(c) any local connection (within the meaning of section 199) which exists between a person and the authority's district.”
Therefore, by virtue of the 2011 Act local housing authorities were specifically empowered to include within their allocation schemes a local connection priority within that class afforded a reasonable preference, and, indeed, generally. The guidance given by the government in December 2013 expressly encouraged local authorities to promulgate allocation schemes which gave priority to long-term residents. It stated:
“12. The Government is of the view that, in deciding who qualifies or does not qualify for social housing, local authorities should ensure that they prioritise applicants who can demonstrate a close association with their local area. Social housing is a scarce resource, and the Government believes that it is appropriate, proportionate and in the public interest to restrict access in this way, to ensure that, as far as possible, sufficient affordable housing is available for those amongst the local population who are on low incomes or otherwise disadvantaged and who would find it particularly difficult to find a home on the open market.
13. Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant's household) to have lived within the authority's district for a specified period of time in order to qualify for an allocation of social housing. The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years.
….
16. Whatever qualification criteria for social housing authorities adopt, they will need to have regard to their duties under the Equality Act 2010, as well as their duties under other relevant legislation such as s.225 of the Housing Act 2004.
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18. Housing authorities should consider the need to provide for exceptions from their residency requirement; and must make an exception for certain members of the regular and reserve Armed Forces …
19. It is important that housing authorities retain the flexibility to take proper account of special circumstances. This can include providing protection to people who need to move away from another area, to escape violence or harm; as well as enabling those who need to return, such as homeless families and care leavers whom the authority have housed outside their district, and those who need support to rehabilitate and integrate back into the community.
…
26. Housing authorities have the ability to take account of any local connection between the applicant and their district when determining relative priorities between households who are on the waiting list (s.166A(5)). For these purposes, local connection is defined by reference to s.199 of the 1996 Act.
27. Housing authorities should consider whether, in the light of local circumstances, there is a need to take advantage of this flexibility, in addition to applying a residency requirement as part of their qualification criteria. …”
Therefore, pursuant to the power granted by Parliament, and spurred on by the strong encouragement of the government, many local authorities have promulgated allocation schemes which incorporate a prioritisation of people with a local connection. These in turn have given rise to a number of lawsuits where other classes of people have complained that this prioritisation has unlawfully discriminated against them. Coincidentally the most recent such case was about the very allocation scheme with which I am concerned: R (on the application of TW & Ors) v London Borough of Hillingdon & Anor [2018] EWHC 1791 (Admin).
This case has a long history. During its course the allocation scheme promulgated by the defendant (“Hillingdon”) has gone into a second edition. The current one dates from December 2016. It incorporates a prioritisation for those people who have been resident in the borough for 10 years, although that, of course, is not the only criterion. The impact of that particular criterion is hedged about with numerous variants, exceptions and deeming provisions, which I will endeavour to describe later.
The claimant, a Kurd of Turkish nationality, was awarded refugee status by the Home Secretary in April 2013. Up to that point he was an asylum seeker accommodated at the direction of the government in Hillingdon. He was notified that he had to leave that accommodation by December 2013. He then approached Hillingdon seeking housing and was given temporary accommodation pursuant to the provisions of Part VII of the 1996 Act. Cutting a long story short, he remains accommodated under Part VII. On 1 July 2016 the claimant issued the proceedings before me. He claims that the decision not to register him on Hillingdon's allocation scheme was unlawful. Primarily, he claims that the scheme, inasmuch as it incorporates a 10-year residence criterion, unlawfully discriminates him as a refugee and a foreign national.
In Ghaidan v. Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, Lord Nicholls of Birkenhead famously stated at para 9:
“Discrimination is an insidious practice. Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced. Of course all law, civil and criminal, has to draw distinctions. One type of conduct, or one factual situation, attracts one legal consequence, another type of conduct or situation attracts a different legal consequence. To be acceptable these distinctions should have a rational and fair basis. Like cases should be treated alike, unlike cases should not be treated alike. The circumstances which justify two cases being regarded as unlike, and therefore requiring or susceptible of different treatment, are infinite. In many circumstances opinions can differ on whether a suggested ground of distinction justifies a difference in legal treatment. But there are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment. Differences of race or sex or religion are obvious examples. Sexual orientation is another. This has been clearly recognised by the European Court of Human Rights: see, for instance, Fretté v France (2003) 2 FLR 9, 23, para 32. Unless some good reason can be shown, differences such as these do not justify differences in treatment. Unless good reason exists, differences in legal treatment based on grounds such as these are properly stigmatised as discriminatory.”
Therefore, in order to establish discrimination there must be proof of (a) at least two alike cases and (b) the fact of different treatment of those cases. Alternatively, there must be proof of (a) at least two unalike cases and (b) the fact of the same treatment of those cases. This would suggest that you...
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