YA v London Borough of Hammersmith and Fulham
| Jurisdiction | England & Wales |
| Judge | Mr Peter Marquand |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] EWHC 1850 (Admin) |
| Docket Number | Case No: CO/420/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 July 2016 |
[2016] EWHC 1850 (Admin)
Mr Peter Marquand (Sitting as a Deputy Judge of the High Court)
Case No: CO/420/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Chataway (instructed by Steel and Shamash) for the Claimant
Christopher Baker (instructed by London Borough of Hammersmith and Fulham) for the Defendant
Hearing dates: 15 th and 16 th June 2016
Mr Peter Marquand (sitting as a Deputy Judge of the High Court):
Summary
This is a claim by way of judicial review challenging the Defendant's decision of the 29 th October 2015 to refuse to enter the Claimant on the Defendant's housing register. The Claimant has for a number of years been in the care of the Defendant and has a criminal record, although at the time of the decision those convictions were spent under the Rehabilitation of Offenders Act 1974. The issues are whether it was lawful to take account of those convictions and whether there was indirect discrimination in the Defendant's housing allocation scheme.
Facts
Housing allocation scheme
The relevant elements of the Housing Act 1996 are contained in Part VI. Every local housing authority is required to have a housing 'allocation scheme' (section 166 A (1)) for determining priorities and for the procedure that must be followed in allocating housing accommodation. Section 166A (3) requires the allocation scheme to give reasonable preference to certain specified groups including people who are homeless and those who need to move on medical or welfare grounds. Subject to any regulations and the requirements of the section, it is for the local housing authority to decide on what principles the allocation scheme is to be framed (section 166A (11)). Housing must not be allocated except in accordance with the local authority's allocation scheme (section 166A (14)).
Under the allocation scheme, the local housing authority may only allocate accommodation to 'qualifying persons' (section 160ZA (6)). However, the local housing authority has a broad discretion to decide what classes of persons are or are not qualifying persons (section 160ZA (7)). There are some further specific requirements and exclusions, which are not relevant to this case. The qualification criteria become part of the allocation scheme ( R (Jakimaviciute) v Hammersmith & Fulham LBC [2014] EWCA Civ 1438).
The Defendant's allocation scheme provides that it will operate a register of housing applicants. Only those who fall into one of the reasonable preference groups listed in section 166A (3) of the Housing Act qualify for admission to the register. Certain classes of applicant are disqualified from the register even though they fall within a reasonable preference category. Those that are relevant to this case appear under the heading 'Exceptional Cases including Classes of Persons that do not Qualify' as follows:
"2.14 Having considered the changes made to the Housing Act Part VI in the Localism Act, the following classes of persons will not normally qualify for registration:
…
(b) Applicants who have been convicted of housing or welfare benefits related fraud where that conviction is unspent under the Rehabilitation Offenders Act 1974. Any person caught by this may re-apply once this conviction is spent.
…
(h) Applicants who have been guilty of unacceptable behaviour which makes them unsuitable to be a tenant. Examples of such unacceptable behaviour include: persistent failure to pay rent and/or service charges; anti-social behaviour which has caused a nuisance by the applicant or a member of his or her household; illegal or immoral behaviour; threats of and/or actual violence; racial harassment; obtaining a tenancy by deception and/or an attempt at tenancy fraud;
…
2.15 There is discretion to waive these classes in exceptional circumstances as approved by the Director of Housing Options, Skills and Economic Development or delegated officer who shall be a Head of Service…"
The allocation scheme states further, under 'assessing your application':
"2.27 Housing Options Officers will work together with social services and other agencies looking at supply and demand to identify clients currently in supported housing who are ready for independent living. Subject to these discussions and agreement that the client's housing needs cannot be met outside of social housing [sic]. In consultation with other officers of the Council, these clients will be placed in Band 2, unless there is an urgent need to move in line with the Band 1 criteria."
The allocation scheme provides that unsuccessful applicants will have a right to request that the decision is reviewed by a team leader, manager or other delegated officer within the council's housing service who has no previous involvement with the case.
In addition, the Defendant also operates a 'Care Leavers' Quota'. A 'Care Leaver' is a person, who as a child was 'looked after' by a local authority and is now leaving that care. The Claimant is such a person. The Children Act 1989 imposes duties upon local authorities to assess and meet needs of 'eligible' and 'relevant' children in certain respects and to have a 'Pathway Plan.' This plan replaces the care plan and runs until the person is at least 21 and covers various matters including education and other support, for example to move into supported lodgings (The Children Leaving Care Act 2000 amending the Children Act 1989). The Care Leavers' Quota is not referred to within the publicly available allocation scheme but in correspondence from the Defendant to the Claimant, the following provisions were quoted:
"7.0 The Care Leavers' Quota (social housing)
7.1 Each financial year, a quota of social housing units is allocated for Care Leavers by Housing Options within its Housing Allocation Scheme. This is referred to internally as the 'Care Leavers Quota'. It is recognised by Children's Services and Housing Options that because of the shortage of social housing supply, these nominations should be targeted to the most vulnerable of Care Leavers. Vulnerability is established through panel discussion and using the assessment framework as set out in 2.3 (above).
7.2 Even if a Care Leaver is considered by the panel to be sufficiently vulnerable for social housing, the Care Leaver must also meet the qualification criteria for social housing as set out in the Housing Allocation Scheme (April 2013).
7.3 the Care Leavers Housing Panel has the discretion, by exception, to recommend people where the decision outcome does not support a social housing nomination, but the professional judgement of the CLH Panel deems the social housing to be the most appropriate option. However, the CLH Panel Chair cannot override the qualification criteria for social housing as set out in the Housing Allocation Scheme. There may be cases where the Panel Chair recommends social housing but the Care Leaver does not qualify under the Housing Allocation Scheme. Where it is thought that the circumstances of the case are so exceptional as to override the qualification criteria, the CLH Panel Chair will request that discretion be exercised by the Director of Housing Options, Skills and Economic Development. For ease, this request will be made through the Panel's Housing Representative. The Director's decision is final."
The Claimant
The Claimant is a Somali national and was born on 1 April 1996. At the time of the decision that he is challenging he was aged 19. He came to the United Kingdom in around 2002 as a refugee and thereafter lived with his sister. However, at the age of about 11 he was taken into care by the Defendant's social services team after suffering a serious assault. In 2010 he was granted indefinite leave to remain in the United Kingdom.
Between July 2008 (aged 12 years 3 months) and 20 th January 2012 (aged 15 years and 9 months) the Claimant committed a number of criminal offences for which he was convicted. The offences included theft, assaulting a police officer, assault occasioning actual bodily harm, criminal damage, robbery, receiving stolen goods, possession of class A drugs, burglary and fraud offences. There is no evidence of any criminal offences being committed after January 2012.
In December 2012 the Claimant, then aged 16 was moved into semi-independent accommodation with the Tavistock Supported Independent Living Project. He was granted an assured shorthold tenancy on 1 April 2014. In February 2015 the Claimant's social worker forwarded a 'Care Leavers Accommodation Panel Nomination Pack' to the Care Leavers Housing Panel (CLHP) to commence the process referred to above. Section A of this pack was completed by the Claimant where he recorded his belief that he was ready for his own accommodation because he had developed the necessary independent living skills, he had no difficulty paying his bills and he was well organised. He stated:
"I also keep to myself (sic) away from antisocial behaviour and very careful on whom I make friends with (sic). Lastly I would like you to consider my application as soon as possible and offer me a place to live by myself so I can start moving forward with my career and life."
The social worker completed part B of the form and in the section to record reasons why the Claimant was suitable for permanent housing he stated:
"[The Claimant] had previously been involved in offending behaviour but he has completely disengaged from such behaviour since moving to his current placement. Since this time he admits to have made good...
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