How can a local authority defend its housing allocation policy against an Equality Act challenge?


    Feature I | Feature II | Cases | FYI

    Feature I

    Allocation of Social Housing — an overview
    'The allocation of social housing is a difficult and potentially controversial matter, which gives rise to very hard choices, at all levels of decision making, whether strategic, policy or specific’, said Lord Neuberger in his judgment in the leading case of R (Ahmed) v LB Newham [2009] UKHL 14. This statement references the underlying tensions for social housing providers where demand for social housing far exceeds supply.

    Housing allocation scheme
    Every Local housing authority (LHA) must have a scheme for determining allocation priorities and establishing allocation procedure (whether or not the LHA owns any housing stock), and the LHA can only allocate accommodation in accordance with its scheme. The LHA must have regard to the English code of guidance or Code of Guidance for Wales in framing or modifying the scheme, and must consult with registered providers holding local nomination rights. Subject to the statutory criteria and regulation, LHAs remain free to frame schemes as they see fit. Every allocation application made to the LHA must be dealt with in accordance with its scheme.

    The allocations scheme must include a statement of the LHA’s policy on offering choice or preference in the provision of accommodation (HA 1996, s 166A(2)).

    When an allocation occurs
    An LHA allocates housing accommodation when it:

    • selects a person to be a secure or introductory tenant of accommodation held by an LHA. (See Practice notes: What is a secure tenancy? and Main differences—secure, introductory and flexible tenancies)
    • notifies a tenant or licensee who is not currently secure that he or she is to become so
    • nominates a person to be a secure or introductory tenant of another organisation
    • nominates a person to be an assured tenant of accommodation held by a private registered provider (or registered social landlord in Wales)

    HA 1996, ss 159(2), 159(3)
    LA 2011, s 145
    The Localism Act 2011 (Commencement No 6 and Transitional, Savings and Transitory Provisions) Order 2012, SI 2012/1463

    When an allocation does not occur
    Not every social housing tenancy is granted by way of allocation. The following exceptions fall outside the provisions of HA 1996, Pt VI:

    • where a secure or introductory tenant, or an assured tenant of a registered provider, succeeds to a tenancy. See Practice Note: Assignment and succession of tenancy
    • where a fixed term secure tenancy remains secure through devolution on death of the tenant
    • where there is an assignment by the way of exchange
    • where there is assignment to someone qualified to succeed on the death of the tenant
    • where a tenancy is transferred pursuant to a specified order in certain family law proceedings (see HA 1996, s 160(2)(e); see also Part II, Schedule 7 of the Family Law Act 1996)
    • where an introductory tenant is granted a secure tenancy following expiry of the introductory tenancy
    • where an LHA provides suitable alternative accommodation under the Land Compensation Act 1973
    • where an LHA grants a secure tenancy to a former owner-occupier that the LHA has repurchased
    • where a family intervention tenancy is offered. (See Practice Note: What is a family intervention tenancy?)
    • where a flexible tenancy is renewed

    HA 1996, s 160
    Allocation of Housing (England) (Amendment) (Family Intervention Tenancies) Regulations 2008, SI 2008/3015
    Family Law Act 1996, Sch 7, Pt II

    See Practice Note: Allocation of housing.

    Choice-based letting schemes
    Choice-based lettings (CBL) schemes were developed following implementation of Housing Act 2002 which abolished the need for a housing register and replaced it with a duty on the LHA to have an allocation scheme. The corresponding Code of Guidance advised LHAs that such schemes must promote choice. Most LHAs will now operate a CBL scheme.

    CBL schemes vary from one authority to another but will broadly place applicants in different groups or bands of priority. Applicants then bid for accommodation that interest them. The bidder from the highest priority group will succeed. Where two or more applicants from the same group apply, the scheme will typically make provision for further prioritisation, based on a points system or based on time on the scheme.

    R (Ahmad) v LB Newham [2009] UKHL 14, [2009] 3 All ER 755 (quoted above) was a challenge to the legality of an allocation scheme that mixed CBL with a quota for direct offers. The scheme also grouped all applicants with a reasonable preference into one band, and then determined respective priority based on time on the list. It was held that:

    • there is no obligation on an LHA to rank reasonable preference applications by reference to the relative gravity of their need
    • reasonable preference does not mean absolute priority and it is reasonable for an LHA to take wider housing management considerations into account
    • the courts should be reluctant to intervene in any scheme in respect of determining priority between reasonable preference applications

    Reasonable preference
    The scheme must be framed to give reasonable preference to applicants who fall within the reasonable preference categories. The duty to ensure that reasonable preference is afforded to those applicants that fall within these categories is the main statutory requirement imposed on LHAs in respect of priorities, applicants based on housing need.

    The reasonable preference categories are as specified in HA 1996, s 166A(3) in relation to England and HA 1996, s 167(2) in relation to Wales and include:

    • those who are homeless
    • those who are occupying insanitary or overcrowded housing or living in unsatisfactory housing conditions
    • those who need to move for medical or welfare reasons
    • those who need to move to a particular locality for whom failure to move would cause hardship

    Additional preference is given to those in the armed forces. (See Practice Note: Allocation preference)
    The following are factors that may be taken into account by LHAs, but this is not an exhaustive list:

    • financial resources (an LHA can give less preference to an applicant who is financially secure and able to secure alternative accommodation)
    • behaviour (greater priority can be given to 'model tenants')
    • local connection

    HA 1996, ss 166A(5), 167(2A)

    All applications for an allocation must be considered however an allocation can only be made to an eligible person. See Practice Note: Allocation—Eligibility.
    Eligibility primarily concerns status in the UK, qualification is the additional post-Localism power given to (English) authorities to determine who can and cannot join the scheme. In Wales there is an additional category of ineligibility relating to unacceptable behaviour.

    Responsibility for determination of whether or not an applicant is eligible for an allocation of social housing rests with a local housing authority (LHA).
    The overriding factor when it comes to eligibility is immigration status: generally, those subject to immigration control or, if not, those known as ‘persons from abroad’ will not be eligible for an allocation.

    Housing Act 1996, ss 160ZA, 160A
    If the applicant has no right to live in the UK (or has the right to, but does not reside) that person will not be eligible. However, this general rule is subject to a number of important exceptions primarily deriving from status as EEA citizens. It is not yet clear how Brexit will impact eligibility for social housing.

    Following LA 2011 (and in England only), applicants must be ‘qualified persons’ to be allocated accommodation. Subject to regulation by the Secretary of State, it is a matter for the LHA to decide who and who is not a qualified person. So far regulations protect the ability of serving and former service personnel and those defined as having the right to move.

    HA 1996, s 160ZA(7)
    However, the power to determine who is eligible cannot be used to exclude one of those categories of person entitled to a reasonable preference (R (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438, [2015] HLR 5). But, a points threshold was lawful in R (Woolfe) v Islington LBC [2016] EWHC 1907 (Admin).

    The combined effect of the Ahmad decision and the introduction of qualification under LA 2011 provides LHAs with an almost free-hand and in determining firstly who should be allowed to join the scheme, and secondly how preference should be afforded to applicants.

    See Practice Note: Allocation—Qualification.

    LHAs will need to comply with all relevant equality legislation, notably the Equality Act 2010 (EqA 2010). Any unlawful discrimination in qualification for the scheme will be prohibited. See Practice Note: Public sector equality duty.

    However the conclusion that the policy is discriminatory does not necessarily mean that the policy can be set aside as a number of decisions have found indirect discrimination to be justified in achieving a legitimate Social Housing aim. In R(H and others v Ealing LBC [2017] EWCA Civ 1127the Court of Appeal held that a policy that Ealing LBC conceded on appeal, did indirectly discriminate against women, the elderly, the disabled and children was justified. Although the Court of Appeal said that if a policy, is discriminatory, trying to point to how it interacts with other policies will not save it from being discriminatory but may be, as in this case, relevant to the consideration of whether or not the discrimination was justified and should not be quashed despite an inadequate EIA. See News Analyses: In Brief: Allocation policy discriminatory but justified (R (H) v Ealing LBC) and In brief: High Court upholds discriminatory housing allocations scheme (R (XC) v London Borough of Southwark).

    R (XC) v London Borough of Southwark [2017] EWHC 736 (Admin)

    Appeals and reviews
    A local housing authority (LHA) must consider every application for an allocation of accommodation made in accordance with the procedural requirements of their allocation scheme.

    Providing proper consideration has been given it is unlikely that the court will interfere with the approach of the local authority. In R (Heaney) v Lambeth LBC [2006] EWHC 3332 (Admin), Collins J dismissed the claim for judicial review on the grounds that the approach of the LHA was not unlawful.
    There are no statutory requirements regarding how the decision should be made, save for decisions on eligibility and qualification which must be in writing. An applicant does have the right to request to be informed of any decision about the facts of their case which is likely to be, or has been, taken into account in considering whether to allocate housing accommodation.

    There is no right of appeal to a county court on a decision under HA 1996, Pt 6 (as there is under HA 1996, Pt 7). The only judicial remedy is judicial review.

    There are however statutory rights to internal reviews of certain allocations decisions.
    The allocation of accommodation: Guidance for local housing authorities in England, June 2012 sets out best practice to be adhered to:

    • notification of the timescale within which they must request a review (21 days from the decision is well-established as reasonable timescale but the LHA should retain the discretion to extend this time limit in exceptional circumstances)
    • applicants should be notified that the request for review should be made in writing, and may be submitted by a representative on their behalf. Applicants should also be advised of the information which should accompany the request
    • authorities should consider whether to advise that provision can be made for verbal representations, as well as written submissions, to be made
    • the review should be carried out by an officer who is senior to the person who made the original decision or by a panel (excluding any person involved in the original decision)
    • the review should be considered on the basis of the authority’s allocation scheme, any legal requirements and all relevant information. This should include information provided which post dates the original decision (eg the departure of a member of the family guilty of anti-social behaviour)
    • reviews should be completed wherever practicable within a set deadline. Eight weeks is a reasonable timescale. The applicant should be notified of any extension to this deadline and the reasons for this

    The Welsh Government Code of Guidance on the Allocation of Accommodation and Homelessness (the Welsh Guidance) gives similar guidance at paragraph 2.55. (See Practice Note: Allocation—decisions and reviews).

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    Feature II

    Allocation policy discriminatory but justified (R (H) v Ealing LBC)

    Adam Heppinstall, Barrister at Henderson Chambers considers the decision in R (H) v Ealing LBC. Ealing has two housing allocation policies which set aside 20% of its total housing stock for working tenants (15%) and model tenants (5%). The policies were designed to keep people in work and off benefits, and to encourage good tenant behaviour (ie no rent arrears or anti-social behaviour.) Two families (a disabled single mother and an older married disabled couple together with their children) that Ealing owed a duty to house, brought judicial review proceedings seeking to quash the policies as discriminating against the elderly, women, and disabled people. The High Court (HHJ Waksman) found the policies discriminatory, unjustified, and quashed them. The Court of Appeal upheld the finding of discrimination (partly conceded before the Court of Appeal by Ealing) but found the policies to be justified and refused to quash them.

    Original News
    R (on the application of H and others) v Ealing London Borough Council (Equality and Human Rights Commission intervening) [2017] EWCA Civ 1127

    What should social housing lawyers take note of?
    Ealing’s policies have been saved, by a whisker, by the Court of Appeal. However, this case shows that great care must be taken to ensure that policies are:

    • not discriminatory or
    • if they are, that the discrimination is justified on well-documented grounds which comply with the Public Sector Equality Duty (PSED)

    The Court of Appeal criticised Ealing’s initial Equality Impact Assessment (EIA) and the use of statistics in its attempt to defend its policies. The Court of Appeal made clear that if a policy, is discriminatory, then trying to point to how it interacts with other policies will not save it.

    Looking at housing allocation policy overall within a local authority is possible within the ambit of the justification argument, but not when assessing discrimination. The court’s judgment shows the lengths to which local authorities must go if they are going to introduce novel and complex allocation policies.

    What was this case about?
    The claimants attacked the policies on four separate bases:

    • breach of the Equality Act 2010
    • breach of human rights (the right to protection against discrimination as provided under Article 14 of the European Convention on Human Rights (ECHR) on the basis that Article 8 ECHR was engaged)
    • breach of the PSED (section 149 Equality Act 2010)
    • breach of section 11 Children Act 2004 (the council’s duty to safeguard and promote the welfare of children in discharging its functions)

    Essentially, the claimants argued that women, the elderly, the disabled and children would be more likely than others to be unable to avail themselves of policies which favour those in work and those who are model tenants.

    Ealing unsuccessfully argued that the policies were not discriminatory in the High Court, but before the Court of Appeal and based on an intervention by the Equalities and Human Rights Commission, conceded that the policies (taken alone) did indirectly discriminate against these groups. Ealing did try to argue that the policies should not be taken alone when deciding if they were discriminatory and should be looked at alongside other policies. However, the main focus of the Court of Appeal’s judgment is on the question of justification of discrimination, both under the Equality Act and Article 14 ECHR.

    What did the court decide?
    The court first decided that you cannot argue that a policy is not discriminatory by taking a whole group of housing allocation policies in the round. Ealing argued that since the introduction of the policies, disabled people were being allocated more housing than before. The court did not accept this argument, because once a policy is discriminatory, it cannot be saved by pointing to the overall effect. The court found the policies to be discriminatory in and of themselves, as conceded by Ealing.

    In the High Court, HHJ Waksman had compared the policies to those of other London Boroughs (Bexley, Barnet and Hammersmith and Fulham). He concluded that because those policies had been designed differently, with ‘safety valves’ to protect groups such as the disabled and women, the Ealing policies could not be justified because, less impactful measures could have been taken to achieve the same ends, such as had been implemented by other The Court of Appeal rejected this approach, finding that unless those other policies were identical or very similar to Ealing’s the argument would not work. The other boroughs’ policies related to the whole of the housing stock and not just a proportion, therefore, they were not analogous. The court found that Ealing was entitled, at the justification stage, to explain that overall protected groups were not disadvantaged by the introduction of the policy.

    Ealing conceded that its EIA was not satisfactory but relied on an ongoing review of the policies which it promised would comply with the duty to avoid this breach leading to the Court of Appeal quashing its policies on that ground.

    Other arguments
    The court also set aside the judge’s finding that the Children Act 2004, s11, duty had been breached, again because overall the council’s policy did not disadvantage families with children.

    All members of the court agreed that the policies were justified under Article 14 ECHR. However two members of the court (Underhill and Davis LJ) disagreed with the Master of the Rolls (who gave the leading judgment) on whether Article 8 ECHR was engaged and whether or not it gives rise to a right to settled accommodation under a housing allocation policy. They have left a definitive judgment on that issue to another day.

    The government has yet to publish a response to the Law Commission report or indicate whether it intends to implement the wholesale reform proposed by the Commission.

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    No agency relationship in tenancy agreement (Mayor and Burgesses of the L B of Haringey v Ahmed)
    In Mayor and Burgesses of the London Borough of Haringey v Ahmed and another [2017] EWCA Civ 1861 the trial judge had erred in law in finding that there had been an agency relationship between the first and second defendant and accordingly that the first and second defendant had entered into possession of the property as secure tenants. The Court of Appeal, Civil Division further held that it was not disproportionate, having regard to art 8 of the European Convention on Human Rights to grant the authority the possession of the property.

    Ground floor restaurant counts towards the three-storey requirement for HMOs (Woking Borough Council v Johnson)
    In Woking Borough Council v Johnson [2017] EWHC 2547 (Admin), the justices had been incorrect, when determining whether the three-storey requirement in the Licensing of Houses in Multiple Occupation (Prescribed Descriptions) (England) Order 2006, SI 2006/371, had been met, to exclude from the calculation a ground floor restaurant located below a two-storey self-contained flat. Accordingly, the Administrative Court allowed the appellant local authority's appeal by way of case stated against the dismissal the information laid against the respondent for managing an unlicensed house in multiple occupation.

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    Views sought on plans to ban landlord and letting agents fees
    The Communities and Local Government Committee is seeking views on the Government's proposals to ban letting fees imposed by landlords and letting agents on tenants. This will help the Government get a wider scope of opinions, than what it has had from its consultation on the draft Tenant Fees Bill. The closing date for submissions is 14th December 2017.

    Secretary of State contacts local housing authorities showing ‘cause for concern’
    Secretary of State for Communities and Local Government Sajid Javid has issued letters to 15 local authorities who have yet to adopt a 2004 Local Plan Intervention, expressing his concerns about the lack of progress the authority has made on plan-making. The 15 authorities showing ‘cause for concern’ as they have missed deadlines and failed to make progress in producing a local housing plan and have now been served a notice that the government has begun the formal process of intervention as set out in the Housing White Paper.

    Shelter report finds housing laws are 'inadequate' and 'outdated'
    Housing charity Shelter has published a report describing housing laws in the UK as 'inadequate' and 'outdated'. Shelter says laws are failing to prioritise tenant safety and that current provisions are ‘piecemeal’. Furthermore, research conducted by the Universities of Bristol and Kent shows that 85% of the housing experts surveyed criticised current legislation as unfit for purpose (Independent, 14 November 2017).

    Statutory Instrument to reduce Local Authority influence in registered social providers: Regulation of Social Housing (Influence of Local Authorities) (England) Regulations 2017
    SI 2017/1102: Changes are made to reduce the influence local authorities have over private registered providers of social housing. These changes restrict the percentage level of officers a local authority may nominate as board members of a private registered provider and removes a local authority’s ability to hold voting rights as a member of a private registered provider. See: LNB News 26/10/2017 46.

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