Housing case law update - June 2021

Daniel Skinner, Sarah Christy and Laura Waby round up the latest judgments of interest to housing associations and local authorities.

Taylor and another v Burton [2021] EWHC 1454 (Admin)

High Court, 28 May 2021

The High Court has clarified the award of costs in statutory nuisance proceedings under the Environmental Protection Act 1990.

A residential tenant, Ms Burton, brought an action in the Magistrates' Court against her landlords. Her property suffered from damp and she claimed that this was prejudicial to her health and was a 'statutory nuisance' under section 79 of the Environmental Protection Act 1990. During the hearing, the landlords eradicated the damp and abated the nuisance. However, Ms Burton applied for compensation for her expenses in bringing the case and the Court subsequently ordered the landlord and agent to pay £14,539.90 each in costs. The landlord argued that Ms Burton was responsible for the nuisance by failing to properly heat the house and denying them access to do repairs. The Court rejected this and the landlords appealed to the High Court, claiming that the costs award was disproportionate.

The High Court, in allowing the appeal in part, held that the Magistrates Court had been entitled to order the landlord to compensate Ms Burton, but had erred in its process for assessing quantum under section 82(12) of the of the Environmental Protection Act 1990. It found that there had been a “broad brush” approach, meaning that it was not possible to tell if the Magistrates Court had made a fair assessment of the proportionality of the costs claimed by Ms Burton. Consequently, the costs matter was remitted back to the Magistrates Court for a new decision.

A copy of the judgment is here.

R (Mallon Montero) v London Borough of Lewisham [2021] EWHC 1359 (Admin)

High Court, 21 May 2021

The High Court held that a five year residence requirement under a Council’s housing allocation policy is lawful.

A housing applicant (Ms Montero) lived with her family in overcrowded privately-rented accommodation in Lewisham. She applied to London Borough of Lewisham for social housing, on the basis that her existing property was overcrowded. Her application was refused because the Council’s housing allocation scheme provides that, subject to limited exceptions, applicants will only qualify for an allocation if they have resided in the Borough for at least five years. Ms Montero argued that she was within a reasonable preference category (“overcrowding”) under section 166A(3) of the Housing Act 1996 and so could not be excluded. Ms Montero sought a judicial review of the Council’s decision.

The High Court, in dismissing the appeal, held that it is lawful for a local authority to disqualify an applicant for social housing on the basis that the applicant did not meet its five-year residency requirement under its housing allocation scheme. Although Ms Montero and her family fell within a reasonable preference category under the Housing Act 1996, this was not sufficient to require the disapplication of the residency requirement.

The decision will be welcomed by local authorities as it approves the use of residence qualification criteria in housing allocation schemes.

A copy of the judgment is here.

R (Nur and others) v Birmingham City Council [2021] EWHC 1138 (Admin)

High Court, 4 May 2021

The High Court has held that a local authority's housing allocation policy, under which families with dependent children were prioritised for housing, indirectly discriminated against families with disabled adult members but no children.

Ms Nur lived in private rented accommodation with her three adult daughters, including one (“Z”) who suffered from cerebral palsy and had learning difficulties. Ms Nur was registered on Birmingham City Council’s housing list and, when Ms Nur’s landlord sought possession of the property, Birmingham City Council accepted that it owed her a homelessness duty under the Housing Act 1996. Following a Health and Housing Assessment, Birmingham City Council concluded that Z had a high priority need for a property that was adapted to meet her needs. However, Birmingham City Council’s housing allocations policy stated that it gave preference for houses with two or more bedrooms to families with dependent children and that properties with adaptations would be allocated to people with a physical or sensory disability. Ms Nur subsequently bid for several suitable three-bedroom houses but her bids were “skipped” because the housing allocations policy gave preferred allocation of houses to families with dependent children, or because the property did not have adaptations. The high demand for council houses from families with children meant that, under the policy, Ms Nur’s bids would always fail.

Ms Nur claimed that (1) Birmingham City Council’s housing allocations policy was unfair as it indirectly discriminated against households with a disabled person, and (2) Birmingham City Council had breached its duty to make reasonable adjustments to the policy under the Equality Act 2010.

The High Court, in allowing the claim, held that the housing allocation policy indirectly discriminated against applicants with disabled adult members but no children. Under Part 3 of the Equality Act 2010, local authorities must adhere to the proactive duty to make reasonable adjustments – but, in this case, Birmingham City Council had to adjust its policy to ensure that “a disabled person had a fair and reasonable opportunity of securing a suitable property”. Despite the pressure on council housing from families with dependent children, the policy was not proportionate and could not be justified. In particular, it led to a blanket ban in practice for disabled families without children being able to bid successfully for adapted properties.

This is an important decision for disabled housing applicants and local authorities, who must ensure that their housing allocation policies do not breach equalities legislation. It is vital that local authorities monitor how their housing allocation schemes impact applicants with protected characteristics.

A copy of the judgment is here.

NB: the first part of this case was heard in December 2020, when the High Court ruled that Birmingham City Council had acted unlawfully in misunderstanding the effect of its own policy. We covered this case in our January 2021 case-law update.

R. (on the application of Andebrhn) v Croydon London Borough Council

High Court, 14 April 2021

The High Court refused to make an interim order requiring a local authority to find more suitable accommodation for a man who had been blinded in an acid attack, as there was no evidence in respect of his medical condition or needs.

An Eritrean refugee (Mr Andebrhn) had been blinded in an acid attack in south London. Mr Andebrhn was advised by the police not to return to the area where the attack had occurred, as the assailant was known to him. After being discharged from hospital, he was housed in a hotel by Croydon London Borough Council whilst permanent accommodation was found. However, Mr Andebrhn contended that the hotel room was unsuitable. Croydon London Borough Council accepted this and also that Mr Andebrhn had good reason for rejecting other accommodation that it subsequently offered to him. Mr Andebrhn sought a judicial review and applied for an interim injunction requiring Croydon London Borough Council to provide him with suitable accommodation.

The High Court, in dismissing the application, held that there was no evidence of what Mr Andebrhn’s current needs were beyond what had been said in an out-of-date social worker’s assessment report. The available medical evidence for Mr Andebrhn was also out-of-date. Croydon London Borough Council was actively looking for suitable accommodation, but the seriousness required to grant an interim injunction had not been made out.

A copy of the judgment is not yet available.

Daniel Skinner is a partner, Sarah Christy is an associate and Laura Waby is a solicitor at Capsticks.