‘Other applicants, who do not qualify to join the register d) Applicants whose anti-social behaviour (ASB) is serious enough to make them unsuitable to be a tenant (“the ASB policy”)’ b. (at page 10): ‘Who is not eligible to join the housing register? Applicants whose antisocial behaviour is serious enough to make them unsuitable to be a tenant do not qualify Where the Council is satisfied that the Applicant (or a member of their household) is guilty of unacceptable behaviour serious enough to make them unsuitable to be a tenant of the Council, the Applicant does not qualify. Behaviour which can be regarded as unacceptable for these purposes includes behaviour by the Applicant or by a member of their household that would – if the Applicant had been a Council tenant at the time – have entitled the Council to a possession order under certain grounds contained in theHousing Act 1985 . It also includes behaviour which has led to a closure order or a civil injunction against the Applicant or a member of their household under theAnti-Social Behaviour, Crime and Policing Act 2014 . There is no need for the Applicant to have actually been a Council tenant when the acceptable behaviour occurred. The test is whether the behaviour would have entitled the Council to a possession order if, whether actually or notionally, the Applicant had been a secure tenant. If an Applicant considers their unacceptable behaviour should no longer be held against them as a result of changed circumstances, they can make a fresh application. Unless there has been a considerable lapse of time it will be for the Applicant to show that their circumstances or behaviour have changed. Each case will be considered on its own merits.’ c. (at pages 29 to 30): ‘ANTI- SOCIAL BEHAVIOUR AFFECTING PRIORITY Some applicants are excluded from joining the register because they do not qualify as a result of unacceptable behaviour. However, even where it is decided that an Applicant does qualify, any history of anti-social behaviour of the Applicant (or member of their household), which affects their suitability to be a tenant, may still be taken into account when allocating a home that is “subject to a sensitive letting” under a Local Lettings Scheme as described below. Any Applicant affected by the decision that their history of antisocial behaviour may be taken into account when allocating a home that is “subject to a sensitive letting” will be notified in writing, with reasons, by the Homes First Team. Any home that is “subject to a sensitive letting” will be identified as such when it is advertised. Whilst any Applicant may bid for homes that are “subject to a sensitive letting”, the Homes First Team will consider bids from those with a history of anti-social behaviour on a case-by-case basis as to whether the Applicant is suitable to be allocated the home they have bid for. The Council reserves the right to take full account of the needs of the local community, as well as the Applicant’s when deciding to make an allocation of accommodation to the Applicant. In very exceptional cases, this right may extend to not allocating a particular home to an applicant, even where the home has not been advertised as being “subject to a sensitive letting”. In such cases, the Homes First Team will seek the authority of a Head of Homes First.’
‘Housing authorities should avoid setting criteria which disqualify groups of people whose members are likely to be accorded reasonable preference for social housing, for example on medical or welfare grounds. However, authorities may wish to adopt criteria which would disqualify individuals who satisfy the reasonable preference requirements. This could be the case, for example, if applicants are disqualified on a ground of anti-social behaviour.’
‘ADHD in particular is emerging as a central issue in debate about disability and anti-social behaviour (Thapar et al, 2006), and, on the basis of our review, we can say with some degree of certainty that a large percentage of those subject to anti-social behaviour measures appear likely to have, or have a diagnosis of, ADHD. Given the studies which report the risk effect of ADHD, this is perhaps not surprising.’
‘I accept that there are some studies, which suggest that people with ADHD may be more likely to engage in anti-social behaviour, and may therefore be disadvantaged by the ASB disqualification provision.’
‘The Applicant is ready to move on from approved supported housing within Eastbourne and the appropriateness and need for a social tenancy has been confirmed by the Council’
‘Applicants who are owed a full housing duty unders193 Housing Act 1996 , and living in temporary accommodation on licence or on a non-secure tenancy’
‘The test is whether the behaviour would have entitled the Council to a possession order if, whether actually or notionally, the Applicant had been a secure tenant.’
‘Applicants without a local connection to the Eastbourne borough’ (the definition of ‘local connection’ being set out later in the policy). I do not accept that the fact that a possession order has already been made on the basis of anti-social behaviour at the time at which an application is being considered would inevitably mean that the rule (d) test was satisfied. Whilst, in such cases, the evaluative exercise is unlikely to prove taxing, I note that paragraph 2.33 of the Welsh code of guidance provides (with emphasis added), ‘Authorities will need to satisfy themselves that there has been unacceptable behaviour which falls within the definition of s160A(8) of the 1996 Act. If a court has already made a possession order on one of the discretionary grounds, or on the absolute ground, then an authority may accept that as evidence of unacceptable behaviour, and proceed to paragraphs (ii) and (iii) below’, indicating that the fact of a possession order made on one of the specified grounds does not oblige the council to conclude that there has been the requisite unacceptable behaviour, though would permit it to do so. The wording of the second paragraph of rule (d), on its face, admits of the same approach. There is nothing inherently illogical about that position, which recognises that the evaluation both of the character of the behaviour in question, and of whether it renders the applicant unsuitable to be a tenant of the Defendant, is a matter for the Defendant, rather than for the court. It is itself indicative of the entitlement conferred by rule (d) to take account of the Applicant’s personal circumstances, including as they exist at the time at which the application is being considered, which, inevitably on this hypothesis, would post-date the order for possession. d. The construction which I have found to be correct is also that which best accords with the fifth paragraph of the policy rule. Although, as the Defendant acknowledged, that paragraph is forward-looking, in relating to a fresh application, it states (with emphasis now added) that, ‘Unless there has been a considerable lapse of time it will be for the Applicant to show that their circumstances or behaviour have changed…’
‘This point also highlights how inapt it is for the courts to interfere with housing allocation schemes, save in clear and exceptional circumstances. This follows from the striking imbalance between supply and demand for housing, the very large number of families with an urgent need to be housed under Part VI of the 1996 Act, and the almost infinite number of different permutations of circumstances giving rise to the urgency. Knowledge of the circumstances of applicants generally, long-term strategy considerations, expertise, political and social awareness, and local knowledge all have a part to play when it comes to formulating and implementing a housing allocation scheme. With information essentially consisting of the scheme itself, the circumstances of the particular applicant and a few statistics (of questionable mutual consistency), the court should be very slow indeed to second-guess [the local authority].’ c. In R (YA) [89] Peter Marquand, sitting as a Deputy Judge of the High Court, observed, as a fact, that the existence of a discretion in that case allowed consideration of special circumstances and avoided a blanket application of the relevant section of the allocations policy. He did so in the course of considering whether the discrimination which he had found had been justified and did not address whether such a requirement was imposed, as a matter of law. d. In R (Yazar), Simon J characterised the root of the challenge to the defendant’s housing allocation scheme as being that it was obliged to have a fair, transparent and rational policy for assessing housing need and allocations and that it did not have such a scheme [5]. At [47], he held that, ‘It is rightly conceded that the [decision letter] disclosed the application of a policy which was plainly flawed, since it implied a fetter on discretion and the application of uncertain criteria’, but, no doubt in light of that concession, undertook no analysis of the legal basis for it. e. In R (Conway), the challenge was to a housing allocations policy which declared ineligible for entry on the housing register, ‘Any person under sixty years of age or their partner who is a tenant of a Local Authority or Registered Social Landlord.’
“In my judgment, this challenge succeeds not essentially because the policy is intrinsically irrational, but rather because it constitutes a rule which requires to be followed slavishly rather than merely a stated general approach which is always subject to an exceptional case and which permits each application to be individually considered. Counsel for the applicant recognises that a public authority such as this respondent council is well entitled to adopt a general policy as to how it will exercise its statutory powers and discharge its statutory duties ... [He] recognises that the council could have worded the policy here in language which would have been proof against successful legal challenge provided only and always that it admitted of the possibility of there being exceptional cases and provided that it was not applied in such a way as to preclude the authority from the need to examine each individual application. As I have indicated, however, those provisos were not here satisfied.”
‘The essential basis upon which the applicant challenges the respondent's continuous stance, as manifested in their various decision letters to which I have referred, throughout the long period of this dispute, is that the respondents have fettered their discretion by adopting and implementing a fixed policy which precludes their giving proper individual consideration to such cases as fall within that policy. Putting it slightly differently, the complaint is that the adoption of the policy operates as a rule and precludes the authority taking into consideration all the relevant matters upon any individual application.’ g. In Hussain, Turner J held that the absence of a discretion to disapply a particular rule in a housing allocations policy devised in connection with Part VI of the 1996 Act, which had related to removal of the applicant from the housing register (by way of two-year suspension), constituted an unreasonable fetter on the discretion of the local authority, though he did not identify or address the legal basis upon which he had concluded that a discretion was required. h. In addition to the cases arising in the housing allocations context, summarised above, the Claimant relies upon the dicta of Singh LJ in R (Adath Yisroel Burial Society) [77] to [78] (emphasis added): ‘Issue 1: Fettering of discretion 77. It is a well-established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers. 78. The principle was stated in the following way by Lord Browne-Wilkinson in R v Secretary of State for the Home Department, Ex p Venables[1998] AC 407 , 496–497: “When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise. “These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see R v Port of London Authority, Ex p Kynoch Ltd[1919] 1 KB 176 ; British Oxygen Co Ltd v Board of Trade[1971] AC 610 . But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful …’
‘The last argument asserted that [the] policy was a blanket policy, and that the Divisional Court were wrong to hold otherwise. It was not clear to me where acceptance of this argument would lead. In answer to a question from Sir Stephen Richards, Mr Wise accepted that, even if the policy were a blanket one, that would not necessarily invalidate it…’
‘…Lewison LJ rightly rejected (at paras 84-85) a further criticism made by Mr Wise, that the Divisional Court was wrong to dismiss his argument that AIHA’s allocation policy was an illegitimate “blanket policy”. There is some flexibility in the policy as it is formulated, in that it allows for AIHA to allocate properties to non-members of the Orthodox Jewish community if AIHA has properties surplus to the demand from that community. However, in circumstances in which demand from that community far exceeds supply, allocation to non-members is not a realistic prospect in the foreseeable future. As Lewison LJ pointed out, the market circumstances are such that AIHA’s allocation policy (in combination with the limited number of properties AIHA owns) does not achieve the aim of meeting the needs of the Orthodox Jewish community in Hackney, but only goes some way towards achieving that aim. There are still many Orthodox Jews in Hackney whom AIHA cannot accommodate and who still suffer the disadvantages associated with the relevant protected characteristic. Unless and until the aim of elimination of such disadvantages is achieved, it would be proportionate for AIHA to operate a simple “blanket policy” to allocate its properties to members of the Orthodox Jewish community as a means of promoting that legitimate aim. So even though market circumstances give AIHA’s policy, in practice, a “blanket” effect, that does not show that it is a measure which is disproportionate to that aim.’
“But the circumstances in which discretions are exercised vary enormously ..... The general rule is that anyone who has to exercise a statutory discretion must not ‘shut his ears to an application’ ..... I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all.”
“The underlying rationale of the principle against fettering discretion is to ensure that two perfectly legitimate values of public law, those of legal certainty and consistency (qualities at the heart of the principle of the rule of law), may be balanced by another equally legitimate public law value, namely that of responsiveness.”
“The unfortunate fact of the matter is that where a council is faced, as this appellant council is faced, with a demand for council housing that greatly exceeds the available housing stock, there is no allocation system that can be devised to avoid hard cases .....”
“The section 167(1) scheme devised by the Appellant council complies with the statutory requirements of the 1996 Act, as amended, and, insofar as its provisions for the allocation of housing to those in the section 167(2) priority band are concerned, cannot .......... be described as irrational or unlawful.”
“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. Social housing is an increasingly scarce (and correspondingly valuable) resource, for which demand considerably outstrips supply, in some areas (such as Newham) by an enormous margin, even if one restricts one’s assessment of demand to those whose claims would be characterised by most people as very pressing.”
“I am clear that it would be unlawful for the Defendants to apply their new policy in such a way as to preclude their acceptance of an application which fell foul of it but of which the circumstances were exceptional.”
“Under the Barras principle, where an Act uses a form of words with a previous legal history, this may be relevant in interpretation. The question is always whether or not Parliament intended to use the term in the sense given by this earlier history.”
“Subject to subsections (2) and (4) and any regulations made under subsection (8), a local housing authority may decide what classes of persons are, or are not, qualifying persons.”
“The Code is not, however, a substitute for the legislation: it gives guidance on how local authorities should discharge their functions and apply the various statutory criteria in practice.”
“[60] However, in this instance Parliament has deliberately, by section 7, conferred a rule making power on the authority. It is for the authority to draw up what it believes are the appropriate criteria for the grant of licences ............. [62] .... The statutory context must be examined with great care. In this case .... the statutory context empowers the authority to make the commission of certain serious criminal offences an absolute bar to obtaining a licence to work as a door supervisor. The rule is intra vires and rational. Not to have such a rule in respect of offences of such great gravity would tend to undermine a fundamental aim of the 2001 Act and such a failure would be truly vulnerable to challenge on grounds both of ultra vires and Wednesbury irrationality.”
‘[85] … the present context is one where at most, there is only a residual common law power. Most of the functions which are exercised by a coroner in the present context derive from legislation, which we have summarised earlier… [86] In those circumstances, we conclude that the power being exercised by the coroner in this case was akin to a power derived from statute. The principle against fettering a discretion applies in the present context. In my judgement, those dicta do not bear the weight which Mr Bano seeks to place upon them. First, I do not read Singh LJ’s use of the word ‘derived’ as intended to communicate a concept different from the alternative wording which he used at [79]: ‘As will be apparent from [R v SSHD e.p. Venables[1998] AC 407 , 496-497] the principle usually applies where the source of a discretionary power is legislation.’
“Direct allocations (lettings outside of the choice based lettings scheme) can only be authorised by the designated senior officer. Direct allocations may be made in the following circumstances: 1. If a nomination is required to enable best use of housing stock. ... 4. A direct allocation in exceptional or emergency circumstances for effective management of social housing stock as determined by the designated senior officer in conjunction with Hillingdon Housing services or a Registered Provider.”
‘DIRECT ALLOCATIONS The Council reserves the right to directly allocate housing to — Applicants in circumstances where remaining in their current accommodation may cause risk of death or serious injury. — Applicants with multiple needs that fall within Band A — Applicants who have been accepted as homeless where the Council has a duty to house — Applicants who are currently living in approved supported housing within Eastbourne and are ready to move on — Tenants requiring a Temporary or Permanent Decant — Applicants oppose a potential risk to the public as assessed by the Multi-Agency Public Protection Assessment Panel (MAPPA) — Non-statutory successors — Existing tenants of the Council requiring an urgent move — Under-occupiers, who have succeeded to a tenancy and have refused an offer — Other Applicants in exceptional circumstances, including Applicants from Eastbourne Borough Council, and at the discretion of the Head of Homes First’
‘In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.’
‘On a comparison of cases for the purpose of section 13, 14 or 19, there must be no material difference between the circumstances relating to each case.’
‘A person (a “service provider “) concerned with the provision of a service to the public or section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.’
‘(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. …’
‘Ahmad predated theEquality Act 2010 and does not address the 2010 Act’s predecessor legislation. But in my judgement, the statements of general principle which I have set out apply with considerable force to the questions whether the measure adopted was the least intrusive possible without compromising the objective, and whether it struck the right balance.’