The Queen (on the application of H and Others) v Ealing London Borough Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Waksman |
| Judgment Date | 18 April 2016 |
| Neutral Citation | [2016] EWHC 841 (Admin) |
| Date | 18 April 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5127/2015 |
[2016] EWHC 841 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Waksman QC
(sitting as a Judge of the High Court)
CO/5127/2015
Stephen Broach (instructed by Hopkin Murray Beskine, Solicitors) for the Claimant
Matt Hutchings (instructed by Legal Department, Ealing London Borough Council) for the Defendant
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Hearing date: 3 March 2016
introduction
This is a challenge to the introduction by the Defendant, Ealing London Borough Council ("the Council") in October 2013 of a significant amendment to its housing allocations policy. Until then, and with some immaterial exceptions, its available lettings were allocated by reference to Priority Bands A to D as described below, A being the highest. An applicant who fell within a particular band was ranked within it by date of entry.
As is well-known, there is a very substantial shortage of social housing. In 2014 there were over 255,000 households on council waiting lists and those in Ealing numbered 10,676. Those who apply for lettings do so because they are currently homeless or in temporary accommodation or who are existing council tenants but wish to transfer to more suitable accommodation.
By the change to its housing allocations policy, the Council introduced a scheme whereby 20% of all available lettings would be removed from the general pool and would be reserved for (a) "Working Households" and (b) "Model Tenants". In brief, a working household was one where the applicant or another member of the household worked for at least 24 hours per week. A model tenant was an applicant for transfer who already had a Council secure tenancy but who was seeking more appropriate accommodation and who had complied with the terms of the tenancy. I shall refer to this change as "the Scheme". The broad aims behind it are to incentivise tenants to work or return to work and to encourage good tenant behaviour. As will become apparent, policies along similar lines have been introduced in other London councils including Barnet, Bexley and Hammersmith and Fulham.
The position of the various Claimants in this case is set out in the evidence and is not in dispute. I take the following description from their Skeleton Argument: the First Claimant is a single mother of six children. The Second Claimant is her youngest child, now aged Five of the children remain living with the First Claimant. The family are victims of domestic violence. The First Claimant has long-standing mental health problems, including depression, anxiety and severe agoraphobia, so that she is 'disabled' within the meaning of section 6 of the Equality Act 2010 ("the Act"). She cannot work at present as a result of her disabilities and caring responsibilities. She is in receipt of income support and personal independence payments which constitute a disability benefit. Her solicitor, Ms Bevington, states in her witness statement ("WS") dated 29 January 2016 that the First Claimant and her family have been moved to alternative temporary accommodation which is suitable for the family's needs and which allows her to access family support. However her primary goal remains to obtain suitable and stable long-term accommodation for her family, so she can focus on meeting her children's needs and her own health and well-being. The scarcity of four bedroom homes, coupled with the Scheme (for which she cannot qualify) is preventing her from achieving this.
The Third to Sixth Claimants are a family comprising two grandparents (the Third and Fourth Claimants), their daughter (the Fifth Claimant) and her infant son (the Sixth Claimant). The Third Claimant was a teacher and journalist and the Fourth Claimant was a teacher, before the family was forced to flee Iran and come to the UK in 2009. The Fifth Claimant has significant physical disabilities, having dystonic cerebral palsy. The grandparents are therefore responsible for much of the care of both their daughter and grandson. The Third Claimant has physical health problems and the Fourth Claimant has physical and mental health problems. As a result, none of the adults in the family are presently able to work. The Third, Fourth and Fifth Claimants are all disabled within the meaning of the Act. Ms Bevington confirms that the family have been provided with alternative temporary accommodation in a village outside Maidenhead. Although the layout of the property is suitable the location is not, and so a review of suitability has been requested any event. The primary need of this family is also for settled long term accommodation so they can access appropriate services and support. As with the First Claimant's family, the Council's housing register is the only realistic route to this.
THE ISSUES
The Claimants challenge the lawfulness of the Scheme on the following grounds:
(1) It indirectly discriminates against women, disabled and elderly persons within the meaning of s19 (2) of the Act and such discrimination is not justified;
(2) It is in breach of Article 14 of the ECHR because the Scheme falls within the ambit of Article 8 and discriminates against women, children, disabled persons, the elderly and tenants who do not hold Council tenancies; all of these groups have "status" for the purpose of Article 14 and again, the discrimination is not justified;
(3) In adopting and maintaining the Scheme, the Council was in breach of its public sector equality duty ("PSED") under s149 of the Act; and
(4) In adopting and maintaining the Scheme, the Council is also in breach of its obligations in respect of the welfare of children imposed by s11 of the Children Act 2004.
THE BASIC FACTS
Introduction of the Scheme
Prior to the introduction of the Scheme, the Council's housing allocations policy operated essentially by reference to the following four priority bands, in descending order:
(1) Band A: Emergency and Top Priority Members;
(2) Band B: Members with an urgent need to move;
(3) Band C: Members with an identified housing need, and
(4) Band D: No priority status, ie all the remaining seekers of Council housing. They cannot actively bid for properties save those which are not wanted by anyone in the higher bands.
The Scheme's details are as follows:
(1) 20% of lettings will be made available to applicants from working households and those Council tenants who comply with their tenancy agreement and pay their rent and Council tax;
(2) The definition of a 'working household' is where they have been 'employed for a minimum of 24 hours a week and for 12 out of the last 18 months';
(3) 'Model tenants' are 'existing tenants who have demonstrated that they are "model" tenants by complying with the terms of their tenancy agreement for a specified period of time'. In particular they:
(a) Must not have rent arrears for the previous 12 months;
(b) Must not have breached their tenancy conditions for the previous two years; and
(c) Must not have any anti-social behaviour record.
Applicants who fall within the Scheme are ranked according to their existing Priority Band and the date of joining it.
Proposals to introduce the Scheme, or something like it, first arose in the context of the Council's Allocations Policy Review of 2012. In the paper produced for the Council's Overview and Security Committee meeting of 21 June 2012, the increased freedoms on the part of local authorities introduced by the Localism Act 2011 were noted. Consideration was given to using them by giving a degree of priority to working households and to see how allocation policy could reward working households and encourage non-working households to work. A percentage of vacancies could be set aside to that end. Ways might also be explored to recognise applicants who demonstrated a positive community contribution along with households who stick to their tenancy agreements. In the consultation process undertaken between January and April 2012, several respondents commented that people with a disability or ill-health, carers and the elderly might not be able to work or to make a community contribution and that might disadvantage them.
At its next meeting on 12 July 2012 the committee made recommendations to Cabinet for consideration at its meeting on 25 July as follows:-20% of lettings would be made available to applicants from working households and model tenants as was eventually set out in the Scheme. By that time what had been described as a full impact assessment report and entitled "2011–2012 Full Equalities Analysis" had been written. This was also submitted to Cabinet. The Scheme would be operated and monitored for 12 months "to identify any unintended consequences and ensure that no particular equalities group is disadvantaged". The proposal also included giving priority to other categories of applicant who made a positive contribution to the community or completed training or did voluntary work. But the decision of the committee at that stage and its recommendation, was to undertake the particular Scheme in relation to working households and model tenants only.
The Full Equalities Analysis referred to 149 of the Act and the PSED thereby imposed and then referred to the main proposals which included details of the Scheme. In paragraph 2 it stated as follows:
"the scheme proposes criteria to enable people to register...
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