Osman, R (on the application of) v London Borough of Harrow [2017] EWHC 274 (Admin)

‘159 Allocation of housing accommodation. (1) A local housing authority shall comply with the provisions of this Part in allocating housing accommodation…. (7) Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate.’

‘(1) Every local housing authority in England must have a scheme (their “allocation scheme”) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. For this purpose “procedure” includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken. (2) The scheme must include a statement of the authority's policy on offering people who are to be allocated housing accommodation (a) a choice of housing accommodation; or (b) the opportunity to express preferences about the housing accommodation to be allocated to them. (3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to— (a) people who are homeless (within the meaning of Part 7); (b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3); (c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions; (d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); and (e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others). The scheme may also be framed so as to give additional preference to particular descriptions of people within one or more of paragraphs (a) to (e) (being descriptions of people with urgent housing needs). … (5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include— (a) the financial resources available to a person to meet his housing costs; (b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant; (c) any local connection (within the meaning of section 199) which exists between a person and the authority's district. (6) Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation— (a) to a person who makes a specific application for that accommodation; (b) to persons of a particular description (whether or not they are within subsection (3)). (7) The Secretary of State may by regulations— (a) specify further descriptions of people to whom preference is to be given as mentioned in subsection (3), or (b) amend or repeal any part of subsection (3). (8) The Secretary of State may by regulations specify factors which a local housing authority in England must not take into account in allocating housing accommodation. (9) The scheme must be framed so as to secure that an applicant for an allocation of housing accommodation— (a) has the right to request such general information as will enable him to assess (i) how his application is likely to be treated under the scheme (including in particular whether he is likely to be regarded as a member of a group of people who are to be given preference by virtue of subsection (3)); and (ii) whether housing accommodation appropriate to his needs is likely to be made available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him; (b) has the right to request the authority to inform him of any decision about the facts of his case which is likely to be, or has been, taken into account in considering whether to allocate housing accommodation to him; and (c) has the right to request a review of a decision mentioned in paragraph (b), or in section 160ZA(9), and to be informed of the decision on the review and the grounds for it. (10) As regards the procedure to be followed, the scheme must be framed in accordance with such principles as the Secretary of State may prescribe by regulations. (11) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed. (12) A local housing authority in England must, in preparing or modifying their allocation scheme, have regard to— (a) their current homelessness strategy under section 1 of the Homelessness Act 2002, (b) their current tenancy strategy under section 150 of the Localism Act 2011, and (c) in the case of an authority that is a London borough council, the London housing strategy. (13) Before adopting an allocation scheme, or making an alteration to their scheme reflecting a major change of policy, a local housing authority in England must (a) send a copy of the draft scheme, or proposed alteration, to every private registered provider of social housing and registered social landlord with which they have nomination arrangements (see section 159(4)), and (b) afford those persons a reasonable opportunity to comment on the proposals. (14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.’

‘1) This section applies to each of the following– (a) a local authority in England;… (2) Each person and body to whom this section applies must make arrangements for ensuring that– (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.’ (a) a local authority in England;… (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.’

‘Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others…. Article 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

‘Secondly, the relief claimed is important because no one suggests that Mr Ahmad has a right to a house. At most, he has a right to have his application for a house properly considered in accordance with a lawful allocation policy. Part VI of the 1996 Act gives no one a right to a house. This is not surprising as local housing authorities have no general duty to provide housing accommodation. They have a duty periodically to review housing needs in their area: Housing Act 1985, section 8. They have power to provide housing accommodation by building or acquiring it: 1985 Act, section 9. They also have power to nominate prospective tenants to registered social landlords or to others. They are required to have an allocation policy which applies to selecting tenants for their own housing or nominating people for housing held by others: Housing Act 1996, section 159(2). But this does not mean that they have to have available any particular quantity of housing accommodation, still less that they must have enough of it to meet the demand, even from people in the “reasonable preference” groups identified in section 167(2). In some areas there may be an over-supply of council and social housing. In others there may be a severe under-supply. Newham is one of those others.’

‘Fifthly, as a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies. Of course, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, it seems unlikely that the legislature can have intended that judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge.’

“If [the relevant section] simply required ‘preference’ to be given, [counsel’s] argument would be correct. But it does not: it requires ‘reasonable preference’. That envisages that other factors may weigh against … or even nullify the preference … No preference is to be given except reasonable preference. That involves balancing against the statutory factors such factors as may be relevant. So the council is entitled to take account of substantial arrears of rent due to the council … it follows that, when in the council’s judgment an applicant’s rent arrears are such as to outweigh the reasonable preference that would otherwise avail him, that applicant will not be selected.” 19. Judge LJ, with whose judgment Potter LJ expressed agreement, said at 938: “The statutory obligation … therefore requires that positive favour should be shown to applications which satisfy any of the relevant criteria. To use colloquial language they should be given a reasonable head start. Thereafter all the remaining factors fall to be considered in the balancing exercise inevitably required when each individual application is under consideration. If despite the head start the housing authority eventually decides on reasonable grounds that the application for a tenancy must be rejected this will not constitute a breach of the obligations imposed by [the section].” 20. Watters clearly establishes that “other factors” may diminish or “even nullify the preference” after applying a balancing exercise, provided the applicant is first given “a reasonable head start”

‘It appears to me, however, that even if it was open to us to hold that a person as distantly related as Mr Michalak was to Mr Lul would now be treated as a member of Mr Lul's family in a Rent Act context and therefore entitled to a successor tenancy - there are too many differences between the regimes for protected/statutory tenancies under the Rent Act 1977 and secure tenancies under the Housing Act 1985 for us to be satisfied that the chosen comparator was in a relevantly similar situation.’

‘The additional question is whether the difference in treatment is based on one or more of the grounds proscribed - whether expressly or by inference - in article 14. The appellant argued that that question should be asked after question (iv), the respondent that it should be asked after question (ii). In my view, the Michalak questions are a useful tool of analysis but there is a considerable overlap between them: in particular between whether the situations to be compared were truly analogous, whether the difference in treatment was based on a proscribed ground and whether it had an objective justification. If the situations were not truly analogous it may be easier to conclude that the difference was based on something other than a proscribed ground. The reasons why their situations are analogous but their treatment different will be relevant to whether the treatment is objectively justified. A rigidly formulaic approach is to be avoided.’

‘15. Whether cases are sufficiently different is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that article 14 was also intended to be so limited. But the Strasbourg court has given it a wide interpretation, approaching that of the Fourteenth Amendment, and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification: Massachusetts Board of Retirement v Murgia (1976) 427 US 307. 16. There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, e.g. that it is rational to prefer to employ men rather than women because more women than men give up employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (e g on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.’

‘In addition, however, there is disparate treatment of non-council tenants because they cannot be model tenants by definition. Indeed this discrimination is direct for that reason.’

‘100. But, whichever test is the right one, I do not consider that the council has justified the scheme here. This is essentially for all the reasons given in relation to indirect discrimination under the 2010 Act. And in relation to the model tenants provision, if the aim is to encourage good behaviour and reward that by increased priority, it does not follow automatically that this should be applied to council tenants only. As a matter of principle, the other councils referred to above operated the additional priority to non-council tenants. That also answers the only other real point made by the council here, namely that it would be impossible to check on the conduct of any tenants other than council tenants because the former would not be under the direct control and knowledge of the council. But as the other councils' policies show, it is possible to devise a set of reasonably robust criteria which must be satisfied by all tenants. 101. I appreciate, as Mr Hutchings points out, that the model tenant element of the scheme is narrow and specific because it deals only with transfers and not new lettings to those who may simply be in temporary accommodation. I also appreciate that with any transfer the property left behind will go into the general pool so the overall amount of housing stock is not reduced. But I do not accept these as answers to the challenge. The point remains that there is a class of well behaved tenant outside this group who cannot take advantage of the scheme and who are otherwise equally in need of better accommodation. And secondly, while other housing stock becomes available, almost by definition, it is likely to be significantly worse or smaller or less appropriate than that transferred to the moving tenants. 102. Mr Hutchings submits that the court should be wary of intruding upon areas of allocation of scarce resources like housing and where there may be more than one way of achieving a legitimate aim. I agree that the mere fact of different approaches taken by other councils does not mean that, without more, the council is bound to follow them. But the point here is a simple evidential one and goes to the critical question of the least intrusive method and fair balance. On this question it would be absurd if the court did not have real regard to how other councils in more or less the same situation as Ealing have tackled the allocation challenges facing them where they have the same broad aims of incentivising tenants. 103. In my view, it cannot be said that as against the aim of encouraging tenants to work and incentivising good tenant behaviour the scheme is the least intrusive method without unacceptable results or that a fair balance has been achieved.’

‘However the supply of this type of housing is very limited. Each year we expect to rehouse around 400 households into public rented housing. Half of the vacancies are study and 1-bedroom flats, normally suitable only for single people and childless couples. Half of these units are reserved for older people. Yet at any one time we have around 5,000 households who have registered their interest in taking such a tenancy and over 1,200 new households applying to register each year. The overwhelming majority of applicants with an acknowledged need are families, for whom most of the available accommodation is unsuitable.’

‘The Council aims (to) ensure that public rented housing goes to those with the most need as defined by local … standards, while reducing the budgetary impact of homelessness.’

‘The scheme reflects the Council’s ambition … to support and protect people who are most in need. It aims to give the highest priority to those who are less able to provide for their own housing needs than most of the population and therefore most in need of the Council’s help when their accommodation is unsuitable for their needs. We define unsuitable housing as accommodation that is: • Adversely affecting in a major way someone’s medical condition or disability; • Significantly detrimental to their welfare … or • Severely overcrowded. The fact that a landlord is a private person charging a rent that is higher than a public sector rent does not make a home unsuitable.’

‘Equality duties: the scheme is framed so as to give effect to the council’s Equality Act 2010 responsibility to eliminate unlawful discrimination on grounds of age, disability, race, religion, sex orientation, gender reassignment, marriage/civil partnership, pregnancy/maternity. Regular monitoring and adjustment of the scheme will take place to give effect to this duty. As far as possible it aims to advance equality of opportunity between people from different groups. Treating tenants and homeseekers equally: The Localism Act allows the Council to allocate properties to council tenants outside the allocations scheme. Harrow, however, prefers to keep most lettings within the scheme to promote transparency, clarity and equality.’

‘Only where a household lacks two or more bedrooms as calculated by the bedroom standard set out in section 21.2 above will they qualify for reasonable preference with Harrow. This is because in the prevailing housing conditions in Harrow many people lack a bedroom without a need for public rented housing being indicated.’

‘whose defining features (including their multiple needs) are deemed to be so exceptional as to warrant a higher priority band than they would normally attract under the scheme. Such cases will be kept to a minimum and will usually entail some imminent threat, recent disaster or an exceptional need not anticipated or covered by the scheme. The assessment process is set out in appendix 5.’

‘the defining features of a member of group A are so exceptionally severe as to warrant immediate/imminent rehousing to enable an offer of housing to be made outside the scheme.’

‘Stop offering high priority to overcrowded families who are home seekers. This has resulted in families remaining in overcrowded accommodation for many years believing this will facilitate an offer of social housing. Families in this situation can resolve their housing need far more rapidly by obtaining suitable alternative accommodation in the private rented sector.’

‘All households who are overcrowded by 2 bedrooms or more are currently given band A on Locata. The proposal is to keep the existing policy unchanged for those living in permanent social housing but reduce banding to band C for those living in private sector accommodation, the same as homeless households. This is because those in private sector accommodation can meet their housing need by moving to alternative accommodation in the private sector, whereas those living in permanent social housing realistically do not have that option. The current scheme unfortunately leads to some families choosing to remain in overcrowded conditions when they could find alternative suitable private rented accommodation (or some adult family members could move out and establish their own household to alleviate the overcrowding).’

‘Homeseekers with an identified housing need to whom the council gives reasonable preference because they are occupying unsanitary or overcrowded private rented housing or are otherwise living in unsatisfactory conditions in private rented accommodation (group 3).’

‘Homeseekers with an identified housing need who qualify for statutory reasonable preference but who have not lived continuously in the borough of Harrow for the last five years.’

‘Part V (sic) of the (1996 Act) s 166A does not define what kind of tenancy should be given priority, only that reasonable preference should be given to families who fall into the prescribed categories. It goes on to say that each scheme may be framed to give addition (sic) preference to people who fall within those categories. We have a legal responsibility as social landlords towards our existing tenants and should not allow them to become overcrowded. It would be unreasonable for this council to tell its tenants who are living in overcrowded conditions to resolve their housing issue by securing accommodation in the private rented sector thus surrendering a secure tenancy. We have therefore given these families additional preference. Families living in the private sector can resolve their housing issues within their existing sector without a need for an allocation of social housing. It would be unfair to prioritise (the Claimant) over other applicants living in unsuitable housing. The changes in our policy brings overcrowding in line with other homeless applicants as defined by s 175(3) of the (1996 Act) …’

‘to give greater priority to applicants from the private sector who were living in overcrowded conditions. They were to be included in Band A of the scheme along with existing council tenants who were in overcrowded premises. This increased priority was to run alongside the existing efforts made by Harrow to assist through the homelessness procedure as it was not considered that such applicants had somewhere that it would be reasonable for them to reside in and were therefore homeless.’

‘2. Sometimes there can be unintended consequences when attempts are made to improve a situation for applicants and it became apparent that applicants were not coming forward to be assisted with suitable accommodation though the homelessness route. This meant that children were remaining in overcrowded accommodation far longer than they needed to be and that many applicants were declining properties offered under the homelessness procedure in the hope of obtaining a secure tenancy under the allocations policy. It seemed that applicants were prepared to wait in conditions that were unsatisfactory especially for their children. It had become a perverse incentive likely to cause harm to the families of applicants. 3. The Policy is regularly reviewed and early in 2015 various amendments were being considered including the downgrading of applicants from the private sector in overcrowded conditions from Band A to band C. It was thought that this would encourage families with dependent children to move into suitable accommodation far more quickly through the homelessness procedure than had been the case when they were waiting for an offer through the allocations policy. It was thought that this would place such applicants in the same position as other homeless applicants.’

‘While the policy outlines our approach to applicants in different circumstances which are more likely to affect specific age groups, such as key stages of education and health needs, every application will be considered on a case by case basis in order to address any specific exceptional circumstances.’