The Queen (on the application of Fartun Osman) v London Borough of Harrow
| Jurisdiction | England & Wales |
| Judge | Robin Purchas |
| Judgment Date | 21 February 2017 |
| Neutral Citation | [2017] EWHC 274 (Admin) |
| Date | 21 February 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3282/2016 |
[2017] EWHC 274 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Robin Purchas QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/3282/2016
Mr David Carter (instructed by the Harrow Law Centre) for the Claimant
Mr Mathew McDermott (instructed by HB Public Law) for the Defendant
Hearing date: 25 January 2017
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.
Robin Purchas QC
Robin Purchas QC:
Introduction
The Claimant applies for judicial review of the decision of the Defendant on 23 March 2016 to award the Claimant Band C priority for the purposes of the allocation of housing accommodation. The award was made in accordance with the Defendant's amended housing scheme (the Amended Scheme) under Part VI of the Housing Act 1996 (the 1996 Act). The Claimant contends that the scheme as amended was unlawful, as is its application to the Claimant, on the grounds that it unlawfully discriminated against those in the private rented sector including the Claimant and her family by denying equivalent priority to those in the public sector contrary to articles 8 and 14 of the European Convention on Human Rights (ECHR). Accordingly the Amended Scheme did not secure that a reasonable preference was given to persons occupying overcrowded housing or otherwise living in unsatisfactory housing conditions including the Claimant and her family contrary to section 166A(3) of the 1996 Act.
Factual background
The Claimant was unemployed and lived with her husband and four children aged 1–6 years old in privately rented accommodation in Harrow. The accommodation was a single bedroomed flat and was therefore seriously overcrowded. The Claimant's eldest child had a severe skin condition and allergy, which were exacerbated by the housing conditions.
On 22 nd December 2013 the Claimant was placed in priority Band A under the Defendant's then housing scheme (the Original Scheme). On 1 st December 2015 she was informed by the Defendant that her priority had been reassessed in accordance with the Amended Scheme with the result that her priority was now reduced to Band C and that 'given the lack of available social housing it is unlikely that you will get an offer through Locata in the near future.' Locata was the web-based system used by the Defendant for the allocation of its social housing. The Claimant sought a review of the reassessment, but by letter dated 23 rd March 2016 the decision was confirmed. The consequence is that it would be unlikely that the Claimant would receive an offer of suitable accommodation, at least not for the foreseeable future. The review letter included an offer open until 8 th June 2016 of one month's rent and deposit to secure a property in the private rented sector.
The Claimant explained in her witness statement that, although the Defendant had offered her financial support towards rent in advance and a deposit for larger accommodation in the private rented sector, she had been unable to find such accommodation because private landlords would not let to tenants on housing benefit.
Legal framework and authorities
Part VI of the 1996 Act provides so far as is relevant:
'159 Allocation of housing accommodation.
(1) A local housing authority shall comply with the provisions of this Part in allocating housing accommodation….
(7) Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate.'
Section 160 provides for cases where the provisions of Part VI for allocation do not apply including assignment of secure tenancies under section 92 of the Housing 1985 (the 1985 Act).
Bysection166A:
'(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.
(2) The scheme must include a statement of the authority's policy on offering people who are to be allocated housing accommodation
(a) a choice of housing accommodation; or
(b) the opportunity to express preferences about the housing accommodation to be allocated to them.
(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 one or more of paragraphs (a) to (e) (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—
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a person and the authority's district.
(6) Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation—
(a) to a person who makes a specific application for that accommodation;
(b) to persons of a particular description (whether or not they are within subsection (3).
(7) The Secretary of State may by regulations—
(a) specify further descriptions of people to whom preference is to be given as mentioned in subsection (3), or
(b) amend or repeal any part of subsection (3).
(8) The Secretary of State may by regulations specify factors which a local housing authority in England must not take into account in allocating housing accommodation.
(9) The scheme must be framed so as to secure that an applicant for an allocation of housing accommodation—
(a) has the right to request such general information as will enable him to assess
(i) how his application is likely to be treated under the scheme (including in particular whether he is likely to be regarded as a member of a group of people who are to be given preference by virtue of subsection (3)); and
(ii) whether housing accommodation appropriate to his needs is likely to be made available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him;
(b) has the right to request the authority to inform him of any decision about the facts of his case which is likely to be, or has been, taken into account in considering whether to allocate housing accommodation to him; and
(c) has the right to request a review of a decision mentioned in paragraph (b), or in section 160ZA(9), and to be informed of the decision on the review and the grounds for it.
(10) As regards the procedure to be followed, the scheme must be framed in accordance with such principles as the Secretary of State may prescribe by regulations.
(11) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.
(12) A local housing authority in England must, in preparing or modifying their allocation scheme, have regard to—
(a) their current homelessness strategy under section 1 of the Homelessness Act 2002,
(b) their current tenancy strategy under section 150 of the Localism Act 2011, and
(c) in the case of an authority that is a London borough council, the London housing strategy.
(13) Before adopting an allocation scheme, or making an alteration to their scheme reflecting a major change of policy, a local housing authority in England must
(a) send a copy of the draft scheme, or proposed alteration, to every private registered provider of social housing and registered social landlord with which they have nomination arrangements (see section 159(4)), and
(b) afford those persons a reasonable opportunity to comment on the proposals.
(14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.'
By section 175 of the 1996 Act:
'(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he—
(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(b) has an express or implied licence to occupy, or
(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession….
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy…'
By the Children Act 2004 section 11:
'1) This section applies to each...
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