Dixon v London Borough of Wandsworth [2007] EWHC 3075 (Admin)

Case No CO/3911/2007

[2007] EWHC 3075 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date 20 th December, 2007.

Strand,

London WC2A 2LL

Before: Michael Supperstone Q.C.

(Sitting as a Deputy High Court Judge)

Between

DARRELL DIXONClaimant

LONDON BOROUGH OF WANDSWORTHDefendant

(Transcript of the Handed Down Judgment of

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Terrence Gallivan (instructed by Flack & Co. London SW18 4JQ) for Claimant

Wayne Beglan (instructed by Borough Solicitor, London Borough of Wandsworth)

Hearing Hearing Date : 4 th and 6 th December, 2007

Judgment

The Deputy Judge:

[1]The Claimant challenges the decision of the London Borough of Wandsworth that he was ineligible for housing accommodation under the provisions of the Defendant's allocation scheme because he was guilty of unacceptable behaviour within s.160A of the Housing Act 1996.

Factual Background

[2]On 18 April 1983 the Defendant granted the Claimant and his sister a joint tenancy of a 2 bedroom flat at 81 Macey House, Surrey Lane, London SW11 ("the premises"). Some time during 2005 the Claimant's sister left the premises, following an incident involving her son (but not involving the Claimant). She sought alternative accommodation from the Defendant who accepted that it was not reasonable for her to continue to occupy the premises. She was provided with alternative accommodation by the Defendant but was required to determine her joint tenancy of the premises. Accordingly the Claimant's sister determined the joint tenancy by serving a Notice to Quit on the Defendant which expired on or about 14 November 2005.

[3]The Claimant requested alternative accommodation from the Defendant. By letter dated 15 December 2005 Ms S.A. Browne, Estate Manager in the Defendant's Housing Department, informed the Claimant that he would be offered a discretionary tenancy of a one bedroom flat as soon as a suitable property became available.

[4]On 10 February 2006 the Police executed a search warrant at the premises where they found just over 1 gram of cocaine in the Claimant's possession with a street value of around £40 to £50. This was for his personal use. He was prosecuted in the Magistrates' Court and pleaded guilty to the offence of possession of a Class A drug. He was fined £300 and ordered to pay costs of £70. On 16 March 2006 the Police executed a further search warrant of the premises and found a small amount of herbal cannabis in the Claimant's possession with a street value of around £3 to £5. The Claimant was cautioned.

[5]Following the Claimant's conviction for possession of cocaine the Defendant reconsidered their decision to offer the Claimant a tenancy of a one bedroom property and by letter dated 8 May 2006 informed him as follows:

"… Your conviction of an arrestable offence is grounds for possession and therefore your application for a discretionary tenancy of 81 Macey House will no longer be considered. You are therefore advised to provide the Council with vacant possession of 81 Macey House … by Monday 15th May 2006. If you fail to do this you are advised that our Borough Solicitor will be instructed to seek a possession order for the property and for you to be liable for any costs incurred in this action."

[6]The Claimant sought a review of that decision under s.167(4A)(d) of the 1996 Act. By letter dated 19 March 2007 the Defendant notified the Claimant of their decision on review which upheld their earlier decision that the Claimant was ineligible for allocation on the basis of unacceptable behaviour within s.160A of the 1996 Act.

[7]In the course of that review the Defendant had learned that according to Police records the Claimant had been cautioned in August 1996 for possession of a small amount of cannabis and for supplying cocaine. The Claimant accepted that in August 1996 the Police had found a small amount of cannabis at the premises and cautioned him in respect of that offence. He did not accept that the Police found any cocaine in the premises in 1996 or that he was cautioned in respect of supplying cocaine. In paragraph 7 of his Witness Statement in these proceedings dated 14 May 2007 the Claimant says: "In addition to the two incidents in early 2006 I accept that nearly 10 years earlier on 8 August 1996 the police searched the premises and found a small amount of cannabis which I accepted was my mine. I was cautioned for possessing a small amount of herbal cannabis, again with a street value of around £3 to £5. I note that the records held by the police on their national computer also show that on the same date I was also cautioned for supplying cocaine. I honestly do not remember this. …. My recollection is that there was no cocaine at the premises and the police did not find any there. I do remember one of the police officers asking me whether I used cocaine and I replied yes, me and my wife did occasionally and the officer said to me, well that is the same as supplying cocaine. I do not remember receiving a formal caution for an offence of supplying cocaine and I must say that I understand that this would have been regarded as a serious offence which would have been unlikely to have been dealt with by way of a caution. …".

[8]By letter dated 19 March 2007 Mr Dave Worth, the Defendant's Head of Housing Services, wrote to the Claimant's Solicitors notifying him of the Defendant's decision on review stating "--The behaviour that led the Eastern Area Team to reach its decision was your client's conviction in April 2006 following a charge of possession of a Class A drug, i.e. cocaine, and since that time, we have been in correspondence regarding your client's request for a review of that decision. As you are aware, your client has sought to dispute the factual accuracy of information known to the Council about his past involvement with the Criminal Justice System and the review has been repeatedly deferred pending your client's enquiries with the Metropolitan Police Service as to the accuracy of his criminal record. Your letter of 31st January 2007 concluded your representations and enclosed a letter and his record from the National Identification Service at New Scotland Yard regarding the outcome of your client's application for disclosure under Section 7 of the Data Protection Act 1998. As you will I hope recognise, I have been particularly reasonable by agreeing a deferment of the review decision for the last 6 months in order to allow your client every opportunity to establish the factual position regarding relevant matters to the decision under review and I take your letter of 31st January 2007 to be your full and final representations for my consideration in the review process. I have now given careful thought to the content of all your representations over the last 6 months, to the circumstances in which the original decision was taken, to the Code of Guidance on allocations and to all other relevant matters. I have considered these circumstances against the statutory test of ineligibility for allocation and in particular, ineligibility on the grounds of unacceptable behaviour set out in Section 160A, sub-Sections 7 and 8. Having done so, I have decided to uphold the original decision, as I am satisfied that your client is ineligible for an allocation of housing accommodation on the basis that he has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority. I am further satisfied that, as of today's date, and by virtue of that behaviour, he remains unsuitable to be a tenant of the authority. My reasons for this decision are as follows: Firstly, I take note that your client was convicted of an offence of possession of a controlled drug, i.e. a Class A drug, Cocaine, with the offence being committed on 10th February 2006. It is established that your client accepted his guilt for this charge by pleading guilty at a hearing on 25th April 2006 at South Western Magistrates' Court. It is also confirmed that he was fined £300 with additional costs at that time. Clearly this is a serious conviction involving Class A drugs and the circumstances of the conviction were following a search of the premises undertaken in the early morning with the police forcing entry. Such an occurrence is obviously very likely to disturb the peace and [quiet] enjoyment by your client's neighbours of their homes. You will accept that it is naturally a disturbing occurrence to have police officers breaking into the property next door early in the morning and carrying out a drug raid. This behaviour is behaviour that I consider to be unacceptable and behaviour against which the County Court would be able and willing to grant an outright Possession Order. It clearly gives clear grounds for possession to be sought. I have reached this conclusion with regard to the seriousness of the offence and to the circumstances in which the premises were searched and the associated damage to the property. You will be aware that following the arrest, the Council needed to undertake repairs to the premises and I consider that the County Court, on an application by the Council, would be prepared to grant an outright Possession Order. I have secondly considered whether the behaviour is behaviour that, as of today, makes him unsuitable to be a tenant of the authority. In this respect you have placed emphasis on your client's regret for the incident and on his efforts to overcome his substance misuse problems by engaging in rehabilitative therapy and treatment via the Community Drug Project as recorded in their letter via yourselves dated 13th October 2006. In your representations you have argued that your client's fairly extensive involvement with the Criminal Justice System should not be considered as relevant to the question of eligibility for allocation on the basis that the majority of that involvement is now many years ago. In significant part, I would agree with you that this is the case and have, therefore, disregarded the convictions for theft and other similar offences revealed in the disclosures of the National Identification Service. However, as regards your client's efforts to overcome his substance misuse problems, I do consider that it is important contextual information that the record discloses offences in relation to drugs prior to the conviction in 2006. I consider that this is relevant in the sense that it indicates that your client's problems with substance misuse are very long standing and therefore, are likely to be more difficult to overcome. I also recognise and give weight to the fact that, shortly after the conviction for possession of cocaine, the property was again searched by the police and the cannabis warning issued. Taking into account these issues, I am satisfied that it is appropriate to put less weight on the recent efforts and rehabilitation than on the seriousness and significance of the most recent conviction and length of the history of drug misuse. I am, therefore, satisfied that in the circumstances applying at this time, i.e. when his application is being considered, he remains unsuitable to be a tenant of this authority by reason of his unacceptable behaviour related to drug misuse. The contents of this letter are the Council's decision on review, which means that your client will not be considered for allocation of housing at this time. This means that the Council is not prepared to provide your client with an offer of accommodation and that we will now move to enforce the possession order obtained previously. As you are aware, the Council has, at my instruction, deferred the execution of the warrant of possession pending the outcome of this review but I have, by copy of this letter, instructed the Area Housing Team to liaise with the Court in order to obtain a further appointment for eviction. This means that your client will now be threatened with homelessness and he is able to approach the authority to be considered under the terms of Part VII of the Housing Act if he wishes to do so."

Legal Framework

[9]Section 160A of HA 1996 (inserted into Part 6 of HA 1996 by s.14 of the Homelessness Act 2002 with effect from 31 January 2003) provides, in so far as relevant, as follows: "Eligibility for allocation of housing accommodation s.160A. Allocation only to eligible persons.(1) A local housing authority shall not allocate housing accommodation – (a) … (b) to a person who the authority have decided is to be treated as ineligible for such an allocation by virtue of subsection (7); or (c) ...

(2) Except as provided by subsection (1), any person may be allocated housing accommodation by a local housing authority (whether on his application or otherwise). … (7) A local housing authority may decide that an applicant is to be treated as ineligible for an allocation of housing accommodation by them if they are satisfied that – (a) he, or a member of his household, has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority; and (b) in the circumstances at the time his application is considered, he is unsuitable to be a tenant of the authority by reason of that behaviour. (8) The only behaviour which may be regarded by the authority as unacceptable for the purposes of subsection (7)(a) is – (a) behaviour of the person concerned which would (if he were a secure tenant of the authority) entitle the authority to a possession order under section 84 of the Housing Act 1985 (c. 68) on any ground mentioned in Part 1 of Schedule 2 to that Act (other than ground 8); or (b) behaviour of a member of his household which would (if he were a person residing with a secure tenant of the authority) entitle the authority to such a possession order. (9) If a local housing authority decide that an applicant for housing accommodation – (a) … (b) is to be treated as ineligible for such an allocation by virtue of subsection (7), they shall notify the applicant of their decision and the grounds for it. (10) That notice shall be given in writing and, if not received by the applicant, shall be treated as having been given if it is made available at the authority's office for a reasonable period for collection by him or on his behalf. (11) A person who is being treated by a local housing authority as ineligible by virtue of subsection (7) may (if he considers that he should no longer be treated as ineligible by the authority) make a fresh application to the authority for an allocation of housing accommodation by them".

[10]Section 84 of the Housing Act 1985 states, in so far as relevant, as follows:

"84Grounds and orders for possession (1) The Court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2. (2) The Court shall not make an order for possession – (a) on the grounds set out in Part 1 of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order, …"

[11]Section 85(2) of the 1985 Act provides:

"On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may – (a) stay or suspend the execution of the order, or (b) postpone the date of possession, for such period or periods as the court thinks fit."

[12]The material ground in Schedule 2, Part 1 to the 1985 Act is Ground 2 which states in so far as relevant that:

"The tenant or a person residing in or visiting the dwelling-house – (ii) an arrestable offence committed in, or in the locality of, the dwelling-house."

[13]Section 169 of HA 1996 provides: "(1) In the exercise of their functions under this Part, local housing authorities shall have regard to such guidance as may from time to time be given by the Secretary of State. (2) The Secretary of State may give guidance generally or to specified descriptions of authorities".

[14]The Secretary of State has issued the Allocation of Accommodation Code of Guidance for Local Housing Authorities under s.169 of HA 1996 ("the Code of Guidance"). The current guidance came into force on 31 January 2003. In so far as relevant it provides as follows:

"Chapter 2: Overview of the Amendments to Part 6 of the 1996 Act made by the Homelessness Act 2002. 2.1 Part 6 of the 1996 Act relates to the process by which people apply and are considered for an allocation of social housing. The 2002 Act introduces substantial revision to Part 6. 2.2 The main policy objectives behind the amendments to Part 6 contained in the 2002 Act are:- • to facilitate the introduction by housing authorities of allocation schemes that offer new applicants and existing tenants a more active role in choosing their accommodation. ◦ removing the power for authorities to implement blanket exclusions of certain categories of applicant. In its place housing authorities are given the power to decide that individual applicants are unsuitable to be tenants as a result of serious unacceptable behaviour; and ◦ breaking down existing barriers to cross-boundary applications. Housing authorities must consider all applications, and cannot exclude applicants who, for example, are not currently resident in the borough. However, in determining relative priorities for an allocation, authorities are able to have regard to whether or not applicants have a local connection with the district; … 2.4 Under s.159, housing authorities are obliged to comply with the provisions of Part 6 in the allocation of introductory and secure tenancies in their own stock and their nomination of applicants to assured tenancies in RSL stock. In this context the term allocation now includes a transfer at the tenants request (s.159(5)). (See Chapter 3). 2.5 Sections 161 to 165, which relate to housing registers, are repealed and the requirements to keep a register ceases. However there is nothing to prevent a housing authority from continuing to maintain a register of applicants, if it so wishes. 2.6 New s.160A provides that only those eligible for housing accommodation may be allocated such accommodation and defines eligibility. This includes, at s.160A (7), a power for a housing authority to decide that an applicant is to be treated as ineligible by reason of unacceptable behaviour serious enough to make him unsuitable to be a tenant. (See Chapter 4). Chapter 4: Eligibility for an Allocation of Accommodation Unacceptable behaviour 4.19 Most applicants for social housing will not be persons from abroad, and will have been resident in the UK (or elsewhere in the CTA) for 2 years prior to their application. Such applicants, together with those eligible applicants from abroad may nonetheless be treated as ineligible by the housing authority on the basis of unacceptable behaviour. 4.20 Where a housing authority is satisfied that an application (or a member of the applicant's household) is guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant, section 160A(7) permits the authority to decide to treat the applicant as ineligible for an allocation. 4.21 Section 160(8) provides that the only behaviour which can be regarded as unacceptable for these purposes is behaviour by the applicant or by a member of his household that would if the applicant had been a secure tenant of the housing authority at the time have entitled the housing authority to a possession order under s.84 of the Housing Act 1985 in relation to any of the grounds in Part 1 of Schedule 2, other than Ground 8. These are fault grounds and include behaviour such as conduct likely to cause nuisance or annoyance, and use of the property for immoral or illegal purposes. Housing authorities should note that it is not necessary for the applicant to have actually been a tenant of the housing authority when the unacceptable behaviour occurred. The test is whether the behaviour would have entitled the housing authority to a possession order if, whether actually or notionally, the applicant had been a secure tenant. 4.22 Where a housing authority has reason to believe that s.160A(7) may apply; there are a number of steps that will need to be followed. i) They will need to satisfy themselves that there has been unacceptable behaviour which falls within the definition in s160A(8). In considering whether a possession order would be granted in the circumstances of a particular case, the housing authority would have to consider whether, having established the grounds, the court would decide that it was reasonable to grant a possession order. It has been established in case law that, when the court is deliberating, reasonable means having regard to the interests of the parties and also having regard to the interests of the public. So, in deciding whether it would be entitled to an order the housing authority would need to consider these interests, and this will include all the circumstances of the applicant and his or her household. In practice, courts are unlikely to grant possession orders in cases which have not been properly considered and are not supported by thorough and convincing evidence. It is acknowledged that in cases involving noise problems, domestic violence, racial harassment, intimidation and drug dealing, courts are likely to grant a possession order. Rent arrears would probably lead to a possession order, although in may cases it will be suspended giving the tenant the opportunity to pay the arrears. In taking a view on whether it would be entitled to a possession order, the housing authority will need to consider fully all the factors that a court would take into account in determining whether it was reasonable for an order to be granted. In the Secretary of State's view, a decision reached on the basis of established case law would be reasonable. ii) Having concluded that there would be entitlement to an order, the housing authority will need to satisfy itself that the behaviour is serious enough to make the person unsuitable to be a tenant of the housing authority. For example, the housing authority would need to be satisfied that, if a possession order were granted, it would not be suspended by the court. Behaviour such as the accrual of rent arrears which have resulted from factors outside the applicant's control for example, delays in housing benefit payments; or liability for a partner's debts, where the applicant was not in control of the household's finances or was unaware that arrears were accruing should not be considered serious enough to make the person unsuitable to be a tenant. iii) The housing authority will need to satisfy itself that the applicant is unsuitable to be a tenant by reason of the behaviour in question in the circumstances at the time the application is considered. Previous unacceptable behaviour may not justify a decision to consider the applicant as unsuitable to be a tenant where that behaviour can be shown to have improved. 4.23 The housing authority must be satisfied on all three aspects set out in para 4.22. Only then can the housing authority consider exercising its discretion to decide that the applicant is to be treated as ineligible for an allocation. In reaching a decision on whether or not to treat an applicant as ineligible, the housing authority will have to act reasonably, and will need to consider all the relevant matters before it. This will include all the circumstances relevant to the particular applicant, whether health, dependants or other factors. In practice, the matters before the housing authority will normally mean the information provided with the application."

[15]It follows from s.160A (7) and (8) of the 1996 Act and paragraphs 4.22 and 4.23 of the Code of Guidance that where a housing authority has reason to believe that s.160A (7) may apply the following approach should be adopted:(1) First, they will need to satisfy themselves that there has been unacceptable behaviour which falls within the definition in s.160A(8). (S.160A(7)(a) and para 4.22(i)).

(2) Second, having concluded that there would be entitlement to an order, they will need to satisfy themselves that the behaviour is serious enough to make the person unsuitable to be a tenant of the housing authority so that an outright order for possession should be made (s.160A(7)(a) of the 1996 Act, s.85(2) of the 1985 Act and para 4.22(ii) of the Code of Guidance).

(3) Third, they will need to satisfy themselves that the applicant is unsuitable to be a tenant by reason of the behaviour in question in the circumstances at the time the application is considered so that an outright order for possession should be made (s.160A (7)(b) of the 1996 Act, s.85(2) of the 1985 Act and para 4.22(iii) of the Code of Guidance).

(4) Fourth, only when they are satisfied on (1)-(3) above can they consider exercising their discretion to decide that the applicant is to be treated as ineligible for an allocation. In reaching such a decision they will have to act reasonably and to consider all the relevant matters before them (s.160A(7) and para 4.23 of the Code of Guidance).

Submissions

[16]In relation to the statutory conditions contained in s.160A (7)(a) of the 1996 Act, Mr Gallivan, for the Claimant, concedes that the Defendant was entitled to decide (1), that the grounds for possession under Ground 2 of Schedule 2 to the 1985 Act are made out in the light of the Claimant's possession of Class A drugs at the premises in February 2006 and his subsequent conviction; and (2) that a court would consider it reasonable in these circumstances to make an order for possession. It is not conceded that the Defendant was entitled to conclude that such an order would have been an outright, as opposed to a suspended or postponed, order.

[17]S.160A (7) and (8) of the 1996 Act requires a local housing authority to be satisfied that an applicant in order to be treated as ineligible for an allocation of housing accommodation by them has been guilty of behaviour which, if he were a secure tenant, would entitle the authority to an outright order for possession under s.84 on Grounds 1-7 mentioned in Part 1 of Schedule 2 to the 1985 Act. Mr Gallivan submits, and I accept, that the effect of the provisions is to require the local housing authority to be satisfied that a notional county court judge would probably make an outright order for possession in the circumstances of the case (see para 4.22(i) and (ii) of the Code of Guidance).

[18]In my view the established case-law, to which I was referred, provides little assistance as to whether on the facts of the present case a court would be likely to grant an outright order for possession.

[19]In City of Bristol v. Mousah

[1998] 30 HLR 32

, Beldam L.J. said (at p.39):

"The public interest, in my view, is best served by making it abundantly clear to those who have the advantage of public housing benefits that, if they commit serious offences at the premises in breach of condition, save in exceptional cases, an order for possession will be made. The order will assist the housing authority, who, under section 21 of the Act, have the duty to manage the housing stock and have the obligation to manage, regulate and control allocation of their houses, for the benefit of the public."

The Judge in that case had found as a fact that the tenant had persistently permitted the premises in question to be used for the purpose of the supplying of crack cocaine, Class A drug. The Court of Appeal decided that "where there is such a serious breach of a condition of the tenancy, it is only in exceptional cases that it could be said that it was not reasonable to make the order." (Beldam L.J. at p.39; and Otton L.J. at p.41; and Thorpe LJ agreed at p.41).

[20]Similarly in Sandwell Metropolitan Borough Council v. Hensley [2007], 1 November 2007, (Lawtel abstract), the Court of Appeal held that a local authority had been entitled to an outright possession order against a tenant who had been convicted of being knowingly concerned in the cultivation of cannabis, since only in exceptional circumstances, where there was cogent evidence to demonstrate that the tenant's particular conduct had ceased, should an order be suspended.

[21]However, as Lloyd J. commented in Stonebridge Housing Action Trust v. Gabbidon

[2002] EWHC 2091

(Ch.):

"… albeit that the observations of the Court of Appeal in City of Bristol v.Mousah are cogent, they do not by themselves compel the conclusion that when the court is addressing the question ["as to whether it should exercise its wide discretion under s.85 of the 1985 Act to suspend a possession order or to stay execution"] it can come to only one possible answer in a case where incidents [of the kind in the present case] – which are to some extent comparable with those that were issues in the Mousah case – have been proved"

. In Gabbidon the premises were used for dealings in crack cocaine, nevertheless the Judge suspended a warrant for eviction. Lloyd J. did "not accept that the drug incidents were conclusive factors which required [the judge] to reject the tenant's application whatever might be the other relevant circumstances." (para 22).

[22]Accordingly, it is necessary to examine with care the facts of the individual case.

[23]S.160A (9) of the 1996 Act requires the local housing authority to notify the applicant of a decision as to ineligibility for allocation by virtue of sub-section (7) and the grounds for it. The Defendant has done that by their letter dated 19th March 2007. However, Mr Gallivan submits that the Defendant has failed to take into account, properly or at all, relevant considerations in reaching their decision. In paragraph 4 (A)(i) of the Detailed Statement of Grounds in support of the application, the considerations that Mr Gallivan said were not taken into account included "the personal circumstances of the Claimant, … in particular, the Claimant's lengthy residence at the premises from age 17; the absence of any previous significant complaint about his occupation of the premises or conduct of the tenancy; the Claimant's efforts to address his behaviour and his offer of an undertaking in respect of the future; the likely impact on the Claimant of treating him as ineligible; the circumstances of the offence including the amount of drugs involved and the relatively modest sentence; that the Claimant's conviction is the first and only time that he has been convicted of any offence involving drugs and is the sole occasion in respect of which Ground 2 is satisfied."

[24]The decision letter dated 19 March 2007, addressed to Flack & Co., the Claimant's Solicitors, refers to previous correspondence between Flack & Co. and the Defendant. In letters dated 12 June 2006, 11 August 2006, 20 September 2006, 11 October 2006 and 31 January 2007 Flack & Co. set out the Claimant' case and made representations on his behalf. The decision letter must be read against the background of this earlier correspondence. As such it is my view that the responses made by Mr Beglan, for the Defendant, to these criticisms are well-founded. In summary they are as follows:(1) The length of the Claimant's residence was well known to the Defendant and there is no reason to believe it was not taken into account. The focus in the decision letter was on the matter in dispute between the parties, namely the length of the history of drug misuse during the Claimant's residence at the premises.

(2) The overall conduct of the tenancy and the absence of serious complaint pre-dating 2006 was in issue and considered. The police records had disclosed misuse of drugs at the premises prior to the conviction in 2006, which were referred to in the decision letter.

(3) Mr Gallivan accepts that the Claimant's efforts to address his behaviour were considered.

(4) There was no reason to think that that the Claimant's offer of an undertaking in respect of the future was not considered in the context of the consideration that was given as to whether his drug rehabilitation treatment was likely to be successful.

(5) As to the likely consequences of a finding of ineligibility, there was no information to suggest that the Claimant would be in any different position to any other ordinary homeless person in those circumstances.

(6) As to the circumstances of the offence, the Defendant knew that the Claimant had been convicted of the possession, rather than the supply, of cocaine and was aware of the amount involved. These matters, together with the sentence imposed, were referred to in the decision letter.

(7) The Defendant knew that the conviction in April 2006 was the Claimant's only conviction for misuse of drugs, but plainly it was not the only occasion on which the Claimant had committed an offence involving drugs.

[25]Further Mr Gallivan challenged the findings set out in the Decision Letter that the Claimant's "problems with substance misuse are very long standing" (p.3). In my view the Defendant had a proper evidential basis for this finding. The Claimant had admitted in 1996 that he had "sometimes" used cocaine and he was cautioned in 1996 in respect of the possession of cannabis. In 2006 he was convicted of possessing cocaine and he was cautioned for the possession of cannabis. At no stage did the Claimant or his solicitors in lengthy correspondence with the Defendant suggest that he was a user of cocaine or cannabis in 1996 and in 2006, but not at any intervening time. In his witness statement the Claimant admits that in the past he has smoked cannabis occasionally and on rare occasions he has taken very small amounts of cocaine (para 8). Having regard to this evidence and to the police evidence as to the drug offences he committed in 1996 (see para 7 above), the Defendant was entitled to approach the case on the basis that the Claimant's drug abuse was long standing, and that it included abuse of Class A drugs.

[26]I reject Mr Gallivan's suggestion that proper reasons for the decision were not given. In my view proper, adequate and intelligible reasons are set out in the Decision Letter. The reasons are stated "in sufficient detail" to enable [the Claimant] to know what conclusion [the decision maker] has reached on the "principal important controversial issues" (Bolton Metropolitan Borough Council v. Secretary of State for the Environment

[1995] 3 PLR 37

, 43C, Lord Lloyd; and see William v. Wandsworth LBC

[2006] HLR 42

at para 18). Moreover Mr Worth balanced competing factors and explained why he concluded that some outweighed others. In particular, when considering the circumstances that applied at the time of the decision, having considered the Claimant's history of drug misuse and his efforts to overcome his substance misuse problems, he said "Taking into account these issues, I am satisfied that it is appropriate to put less weight on the recent efforts at rehabilitation than on the seriousness and significance of the most recent conviction and length of the history of drug misuse".

[27]In my view the decision maker made proper findings of fact and analysed the evidence and relevant considerations with care. He reached a decision, applying the correct test, that he was entitled to make. I reject the submission that the decision was Wednesbury unreasonable.

[28]Finally, Mr Gallivan submits that

Article 8 of ECHR

is engaged on the basis that the decision interferes with the Claimant's right to respect for his home. It is submitted that the Claimant's Article 8 rights have been violated because immediately prior to the decision under challenge the Claimant was occupying the premises as his home pending the making of an offer of alternative accommodation. It is said that the effect of the Defendant's decision is to deprive the Claimant immediately of the home in which he has resided for many years and to deprive him of the offer of alternative accommodation.

[29]However the authorities referred to by Mr Gallivan do not assist. In Kay v Lambeth London Borough Council

[2006] 2 AC 465

(following Harrow London Borough Council v. Qazi

[2004] 1 AC 983

) the House of Lords decided that a claim by a local authority owner of property to recover possession engages Article 8, notwithstanding that the person occupying the property as his home has no legal or contractual right to remain there. The earlier case of Sheffield City Council v. Smart

[2002] HLR 34

decided that accommodation given to a person under Section 193 of the Housing Act 1986 has to be treated as the person's home when he moved into it, albeit her security of tenure is fragile and temporary. Accordingly, a court eviction order must be treated as an interference with a right to respect for her home under Article 8(1). Both these cases concerned claims for possession of property; neither of them support the submission that Article 8(1) is engaged in the circumstances of the present challenge which is to the decision that the Claimant is ineligible to be allocated housing accommodation.

[30]In my view Mr Beglan is correct in his submission that it is not the decision under challenge which interferes with the Claimant's right to respect for his home. That decision arose out of the operation of the system for the allocation in the future of a scarce resource, namely social housing. The Claimant is at risk of losing his home following the Notice to Quit that was served in October 2005. The possession order that has been obtained and that the Defendant now proposes to enforce resulted from the service of the Notice to Quit and its expiration, not from the decision that the Claimant was ineligible for accommodation.

Conclusion

[31]For the reasons which I have explained, this claim must be dismissed. The decision of the Defendant that the Claimant was ineligible for housing accommodation under the provisions of the Defendant's allocation scheme was not unlawful.