“(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 sub-section (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)of theHousing 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 sub-section (3); and the factors which the scheme may allow to be taken into account include— (c) any local connection (within the meaning of section 199) which exists between a person and the authority’s district. (6) Subject to sub-section (3), the scheme may contain provision about the allocation of particular housing accommodation— (b) to persons of a particular description (whether or not they are within sub-section (3)). (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. (14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.”
“The Council will register eligible applicants who qualify for the reasonable preference criteria and certain groups who meet local priority. In addition, the Council will ensure that greater priority through ‘additional preference’ is given to applicants who have a longer attachment to the borough, are working, … and childless couples.”
“Households who have not been continuously living in the borough for at least 10 years and will not qualify to join the housing register Applicants will need to demonstrate a local connection with Hillingdon. Local connection within the terms of this scheme will normally mean that an applicant has lived in Hillingdon, through their own choice, for a minimum of 10 years up to and including the date of their application, or the date on which a decision is made on their application, whichever is later. For purposes of continuous residence, children spending time away from home for education due to periods of study such as at university and people who have moved away up to 3 times due to the requirements of their job will be disregarded. Secure, introductory or flexible tenants of Hillingdon Council and care leavers housed outside the borough will be considered as having a local connection with Hillingdon. People will also be considered as having a local connection with Hillingdon when they are placed in the borough of Hillingdon in temporary accommodation in accordance with sections 190(2), 193(2), 195(2) or who are occupying accommodation secured by any local authority under section 192(3).”
“5.1 Priority Banding Housing need is determined by assessing the current housing circumstances of applicants. A priority ‘band’ is then allocated according to the urgency of the housing need. There are three priority bands as follows Band A – This is the highest priority band and is only awarded to households with an emergency and very severe housing need. Band B – This is the second highest band and is awarded to households with an urgent need to move. Band C – This is the third band, and the lowest band awarded to households with an identified housing need. If following an assessment it is determined that an applicant has no housing need, they cannot join the housing register…”
“The council will maintain the protection provided by the statutory reasonable preference criteria in order to ensure that priority for social housing goes to those in the greatest need… 12.1 Homeless household This applies to people who are homeless within the meaning of Part 7 of the 1996 Housing Act (amended by theHomelessness Act 2002 and theLocalism Act 2011 ). … Where the Council has been able to prevent homelessness and the main homelessness duty has been accepted, applicants will be placed in one of the following bands: Band A – in temporary accommodation but the landlord wants the property back AND the council cannot find alternative suitable temporary accommodation. Where an applicant fails to successfully bid within 6 months, a direct offer of suitable accommodation will be made. If the property is refused the Council will discharge its duty under Part VII of the Housing Act and withdraw any temporary accommodation provided. Band B – In Bed and Breakfast, council hostel accommodation or women’s refuge. Band C – In other forms of temporary accommodation. Where the Council has been unable to prevent homelessness and the main homelessness duty has been accepted, applicants with less than 10 years continuous residence in the borough will be placed in Band D. … 12.4 Medical grounds If you apply for housing because your current accommodation affects a medical condition or disability, your application will be referred to the council’s medical adviser or occupational therapy team depending on what you have put in your application for assessment. … 12.6 Hardship grounds There are a number of households applying to the housing register who experience serious hardship because of a combination of different factors which make the need for re-housing more urgent than when considered separately. The decision as to the appropriate priority ‘band’ will depend on both the combination and degree of the various factors with a view to ensuring that the greatest priority is given to those in the greatest need. In circumstances where this applies, a panel of officers (Hardship Panel) will undertake a review of the case to determine whether priority for re-housing is necessary. The following priority banding will be considered Band B – the applicant or a member of their household has multiple needs or has an urgent need to move. Examples include: • To give or receive care or support from/to a resident in the borough, avoiding use of residential care. It is constant care to/from a close relative as evidenced by a professional’s report and supported by the Council’s Medical Adviser; • Child protection reasons; … • Other urgent welfare reasons.”
“14.2 Couples aged over 21 without children Additional priority is awarded to couples aged 21+ without children. This will improve access to available lettings to those households without children who would otherwise be in ‘Band C’. 14.3 10-year continuous residency Additional priority is awarded to those who have a local connection by living in the borough continuously for a minimum period of ten years. This will support stable communities and reward households who have a long-term attachment to the borough. Local connection will normally mean that an applicant has lived in Hillingdon, through their own choice, for a minimum of 10 years up to and including the date of their application, or the date on which a decision is made on their application, whichever is later. 14.4 Working households Additional priority will be given to households who are in housing need and are working but are on a low income which makes it difficult to access low cost or outright home ownership. This will encourage people who can, to work and raise levels of aspiration and ambition. This policy applies to households where: • At least one adult household member is in employment. • The employment should be a permanent contract, self-employment or part time for a minimum of 24 hours per week. • The worker should have been in employment for 9 out of the last 12 months. • Band A – where the household’s housing need is ‘Band B’ + working. • Band B – where the household’s housing need is ‘Band C’ + working”
“Indirect discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of sub-section (1) a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if— (a) A applies, or would apply, it to persons with whom B does not share the characteristics, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.” (a) A applies, or would apply, it to persons with whom B does not share the characteristics, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
“(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…”
“74. The judgment of Dickson LJ in Oakes[1986] SCR 103 ] provides the clearest and most influential judicial analysis of proportionality within the common law tradition of reasoning. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter… In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure. 75. In relation to the third of these criteria, Dixon CJ made clear in R v Edwards Books and Art Ltd[1986] 2 SCR 713 , 781-782 that the limitation of protected right must be one that ‘it was reasonable for the legislature to impose’, and that the courts were ‘not called on to substitute judicial opinions for legislative ones as to the place at which to draw a precise line’. This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J once observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois State Board of Elections v Socialist Worker’s Party (1979) 440 US 173, 188-189); especially, one might add, if he is unaware of the relevant practicalities and indifferent to considerations of cost…”
“46. …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.”
“The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems was given by the Grand Chamber of the European Court of Human Rights in Stec, para 52. Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities.”
“It appears to me that this is pre-eminently a field in which the courts should defer to the decisions taken by a democratically elected Parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms.”
“… It is now clear that, whilst this criterion [‘manifestly without reasonable foundation’] may sometimes be apt to the process of answering the first question, and perhaps also the second and third questions, it is irrelevant to the question of fair balance, which while free to attach weight to the fact that the measure is the product of legislative choice, the court must answer for itself: see In Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill[2015] AC 1016 , para 46, Lord Mance JCS.”
“The introduction of a ten year residential qualification criteria will have a negative impact for local residents meeting the criteria. In addition, it will mean new residents arriving in the borough and/or country will not be able to access the Housing Register”
“2. Race For residents who have not resided in the borough for more than 10 years, mainly BME residents, there will be a negative impact. In addition, for [new] BME and non-BME arrivals to the borough, there will be a negative impact as they will not be able to access the waiting list for ten years. Action – proposed options on residency ranging from 5-10 years to be considered by Cabinet – in order to minimise the impact.”
“I understand that Cabinet considered the report and the Impact Assessment and approved the 10-year residence requirement as providing the most appropriate balance between the needs of those on the Housing Register and the aims of the policy, namely to support stable communities within the Borough and to reward those residents who could demonstrate a stronger attachment to Hillingdon. The Scheme allows for a number of exceptions to the 10-year residence requirement in specified situations and in cases where hardship would result, which was felt to provide protection to those applicants who would otherwise be disproportionately impacted by the changes.”
“A proposal to restructure the Policy so that all statutorily homeless persons with less than 10 years’ continuous residence in the borough are placed in a new Band D on the housing register thus entitling applicants to a reasonable preference over those who are not admitted onto the housing register, but a lower preference than those in Bands A-C.”
“One of the key benefits of the proposals is the relaxation of the 10-year rule as it applies to those individuals that fall under the reasonable preference categories – this includes statutorily homeless applicants, applicants occupying insanitary or over-crowded housing (or who otherwise live in unsatisfactory housing conditions), applicants who need to move on medical or welfare grounds or those applicants who need to move to a particular locality in the borough – where a failure to move would cause hardship to themselves or others. …”
“12. A further report, dated14 October 2016 , made recommendations to create a further exception to the 10-year rule in order to give qualification to all those in the statutory reasonable preference groups and for these applicants to be placed into a new Band D, and to continue to have an exception from the 10-year qualification rule for those in sheltered housing and those under-occupying their social housing but to include a requirement that applicants in these groups be resident in the Borough. 13. Meetings were held with Social Care colleagues regarding the Allocation Policy in the autumn of 2016. These followed publication of a Homelessness Review and in addition to the allocation policy, also included discussion of homelessness strategy and other areas of cross-service interest. These included meetings with the Head of Children’s Services on7 October 2016 , and Head of Adult Services on11 October 2016 . 14. A completed draft of the Allocation Policy and accompanying Cabinet Report, Equality Impact Assessment and Consultation Report, was sent to the Adult and Children’s Social Care Services Director for distribution to relevant colleagues, prior to a meeting on24 October 2016 . A further meeting was held in which the Housing Strategy Manager presented the proposed changes to the Allocation Policy to the Adult and Children’s Social Care Services Director and Senior Management Team on17 November 2016 . Consequently, there was a full dialogue between Housing Services and both Children and Adult Social Services prior to the implementation of the current Scheme. 15. The documents I have produced show the following key policy aims of the Scheme: (1) to ‘provide a fair and transparent system by which people are prioritised for social housing’; (2) to ‘help those most in housing need’; (3) to ‘reward residents with a long-term attachment to the Borough’; (4) to ‘encourage residents to access employment and training’; (5) to ‘make best use of Hillingdon’s housing stock’, and (6) to ‘promote the development of sustainable mixed communities’. For present purposes, I draw attention to the third and fourth of those aims which were reflected in the residence and working household provisions of the Scheme. 16. Cabinet approved the current Social Housing Allocation Scheme on15 December 2016 .”
“Given that the Ministry has not addressed the possible impacts upon women, assessed whether there is a disadvantage, how significant it is and what might be done to mitigate it or to meet the particular circumstances of women offenders, it cannot show that the present distribution of APs for women is a proportionate means of achieving a legitimate aim.”
“Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant’s household) to have lived within the authority’s district for a specified period of time in order to qualify for an allocation of social housing. The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years.”
“… households who are in housing need and are working but on a low income which makes it difficult to access low-cost or outright home ownership.”
“Some households find that, whilst one or more members work, their income is sufficient to reduce their entitlement to benefits but insufficient to enable them to rent accommodation privately. This is sometimes referred to as the ‘poverty trap’ and, in terms of access to suitable accommodation, it is a substantial problem for those who are caught in it. To help those who find themselves in this predicament, the Scheme provides an uplift by way of additional preference.”