A High Court judge has ruled that a housing allocation scheme preferring existing social housing tenants was not unlawfully discriminatory, but that the operation of a system of direct offers was unlawful. Christopher Baker and Richard Granby explain why.
The Administrative Court has held that priority within a housing allocation scheme for existing social housing tenants to be preferred over other applicants, such as the homeless and women fleeing domestic violence, for certain local lettings of eg new and refurbished accommodation was justified and accordingly had not been unlawfully discriminatory for the purposes of art 14 and ss19 and 29 Equality Act 2010; the introduction of the local lettings policies had complied with s149 Equality Act 2010 and s11 Children Act 2004; but the operation of a system of direct offers, used particularly to allocate accommodation to homeless applicants, had not been sufficiently set out in the scheme and was accordingly unlawful.
The Claimant in R (c) v Islington  EWHC 1288 (Admin), 31 May 2017had applied for homelessness assistance, under Pt 7 Housing Act 1996, for herself and her children; Islington accepted they owed her a homelessness duty under s193 and accordingly arranged temporary accommodation for them. They also registered her on their housing register, pursuant to their housing allocation scheme under Pt 6, for an allocation of social housing and awarded her 110 priority points.
Within the scheme there were policies in respect of “local lettings”, which included discrete provisions for the prioritisation of applicants in relation to accommodation in particular locations, including new and refurbished homes on or off estates and transfers of existing tenants within an estate. These policies afforded priority above other applicants to existing social housing tenants in the respective locations who wanted to move. The properties in question, however, formed only a relatively small number and proportion of all the properties allocated by Islington under the scheme.
The scheme included provision for Islington to set points thresholds, below which registered applicants would not be able to make bids for properties under the choice-based lettings process. The threshold had been set at 120 points (including bids for any local lettings). The inclusion of such a threshold had previously been held to be lawful in R (Woolfe) v Islington LBC  EWHC 1907 (Admin)  HLR 42 and was not challenged in the present proceedings. Overall, the scheme provided for three mechanisms for making offers of accommodation: the general choice-based lettings bidding process, a system of “supported choice” for certain applicants to assisted in making bids and “direct offers” of accommodation selected by Islington in relation to which applicants made no bids.
The Claimant contended that she was entitled to an additional 40 welfare points under the scheme (which thus would have enabled her to make bids), relying for this purpose on a psychologist’s report concerning the family and their occupation of the temporary accommodation. On a review, however, it had been confirmed she was not entitled to any welfare or medical points. She alleged that Islington had failed properly to apply their scheme in assessing her family’s circumstances, including by failing to accept that she had a need for “settled accommodation” within the terms of the scheme because she was in temporary homelessness accommodation.
The principal part of the claim, as originally formulated, alleged that the local lettings policies discriminated against the homeless and women fleeing domestic violence. That claim was advanced under both art 14 (in combination with art 8) and under ss19 and 29 Equality Act 2010. In response to the claim, Islington adduced statistical evidence to show, among other matters, how local lettings policies assisted allocations in general by freeing up the properties from which existing social tenants were transferred, thereby creating availability and movement. Islington also explained their justification for the policies.
The Claimant also alleged that when introducing the local lettings policies Islington had failed to give sufficient consideration to the impacts for the purposes of the general public sector equality duty under s149 Equality Act 2010 and the needs of children for the purposes of s11(2) Children Act 2004.
At the hearing, arising from further information and evidence which Islington had meanwhile provided, the Claimant additionally alleged breach of various statutory requirements under s166A to have and operate a scheme covering all aspects of priorities and procedures in allocating accommodation. It was contended that the manner and extent to which direct offers of accommodation were in practice made to many homeless applicants outside the usual choice-based lettings process, in discharge of the s193 duty, were not apparent from the published scheme itself.
The Court held (dismissing all the original and main grounds of challenge, but allowing the new ground):
(1) The scheme involved evaluative judgments to determine the prioritisation of scarce resources and although the words “settled accommodation” in the scheme included social housing under Pt 6 Housing Act 1996 they were not necessarily limited to such accommodation and could include homelessness accommodation being provided under Pt 7; when considering whether the Claimant’s present accommodation was settled, Islington were entitled to take into account both the time which she had already spent in it and their own assessment of the likelihood of her remaining there for the foreseeable future, and they were entitled to conclude it was settled; further, when considering the psychologist’s report, Islington were entitled to decide not to award 40 welfare points.
(2) It was implicit from the wording of the scheme that the threshold of 120 points applied to direct offers as well as the choice-based lettings process; apart from provision for discretionary power given to the Director of Housing Needs and Strategy (for special cases with exceptional needs), there was nothing to suggest that applicants awarded fewer than 120 points would be entitled to be made the subject of any offers of social housing; there was nothing in the scheme which set out the criteria used to make direct offers so as to enable an applicant to make a realistic application to be dealt with under this system, to know whether they were likely to succeed, if unsuccessful to understand why and, if the refusal was unlawful, to challenge it; the procedure whereby the provision of direct offers was operated was accordingly unlawful, as were the decisions on the Claimant’s application.
(3) In relation to the discrimination claim, although there were differences between the Claimant and existing social housing tenants who were beneficiaries of the local lettings policies, these did not prevent all applicants under the scheme being considered to be analogous, and there was accordingly a difference in treatment between them which, unless justified, was unlawful; in considering the question of justification, however, the court was entitled to look at the scheme as a whole in determining for itself the question of proportionality, and significant weight should be accorded to Islington’s decision as the policies concerned the allocation of finite resources by a body that not only had considerable expertise and experience in these matters but had been entrusted with this task by Parliament.
(4) On the evidence, although the local lettings policies did give priority to existing social housing tenants, it was clear that the scheme did not act as a total bar to someone from outside the locality being able to be allocated new social housing; not only was there no evidence that any unlawful discrimination arose from the alleged differences in benefit from the provision of new as opposed to existing social housing, if other factors such as size of accommodation were taken into account it was from obvious that there was any benefit to be gained from the provision of new accommodation; Islington had carried out and continued to carry out monitoring of any discriminatory effect and in the context of the scheme as a whole the effect of local lettings had been beneficial in that it facilitated the securing of reasonable preference to those entitled to it under s166A(3); while it may always be possible to think of ways in which to create less intrusive policies in general, Islington’s local lettings policies could not be any less intrusive, in the sense of being less detrimental to the Claimant, while maintaining their legitimate aim and Islington’s decision was certainly not manifestly without reasonable foundation; bearing in mind the extent to which the local lettings policies contributed to that aim, they struck a fair and proportionate balance between the severity of the consequences for the Claimant and the importance of the aim.
(5) On the evidence and in the context of this case in which Islington were dealing with the difficulties of allocating scarce resources within the statutory framework of the 1996 Act, they had given sufficiently rigorous and conscientious consideration to the public-sector equality duty when introducing the current local lettings policies in the scheme, and had satisfied the statutory requirement to have due regard to it; furthermore, there had been no breach of s11 Children Act 2004.
This appeared first on Arden Chambers' website.