High Court dismisses Judicial Review challenge to council housing allocation scheme
The High Court has dismissed a judicial review challenge to the London Borough of Enfield’s housing allocation scheme, after a claimant contended the scheme was unlawful both on a public law basis and that it breached the anti-discrimination provisions as set out in the ECHR and/or the Equality Act.
In RR, R (on the application of) v The London Borough of Enfield, the claimant, RR, who has a disabled wife, observed that applicants for the council’s allocation scheme in the ‘homeless’ cohort cannot be awarded an alternative or additional priority based on their other personal circumstances and will be capped at 200 or 300 points (depending upon the nature of their homelessness) whereas non-homeless applicants could be awarded up to 1000 points based on other personal circumstances, such as disability.
He therefore contended that a homeless and disabled applicant will receive far fewer points than the comparable applicant who is not homeless.
RR is a married man with two young children, aged 4 and 1, and acts as a full-time carer for his wife, ED. He arrived as a refugee from Iran approximately 25 years ago. He married ED and their first child was born on 12 April 2020.
ED applied for and was granted the right to join RR as his spouse on 10 March 2021. A few days after that decision, ED was very seriously injured in a car accident in Iran when she sustained brain damage and life-changing physical injuries.
The judge noted: “These injuries have caused her mobility problems, problems with her vision and dizziness, and have put her in constant pain in her legs, lower back and pelvis.”
When ED arrived in the UK, RR became ED’s primary carer, and was therefore unable to work.
On 8 November 2022, an application was made by RR and ED for housing assistance from Enfield.
The council treated that as an application for homelessness assistance pursuant to the provisions of part 7 of the Housing Act 1996, but also placed RR onto the housing register.
Enfield initially provided bed and breakfast accommodation, between 18 November and 9 March 2023.
On 17 February 2023, the council accepted that it owed the family of RR the main housing duty and on 20 February 2023 accepted the application of RR’s family to join the allocations scheme. As they were living in temporary accommodation, the family were awarded 200 points for being in the “Homeless or threatened with homelessness” cohort.
Subsequent to a pre-action protocol letter, the family were moved into a small one-bedroomed flat as temporary accommodation, which RR said was “extremely difficult” to live in given ED’s needs and disabilities, the judge noted.
On 16 March 2023, RR challenged the decision to award them only 200 points, as they were occupying temporary accommodation, and sought a review of the 200 points awarded as he contended that he ought to have been granted a medical and welfare priority.
In the review decision, Enfield determined that as RR and his family fell within the “Homeless or threatened with homelessness” cohort, that meant they fell outside the “health and wellbeing” cohort and were not entitled to further preference in respect of either health or well-being.
The second child of RR and ED was born on 1 June 2023 and the council determined at that time that the one-bedroomed flat that the family were being housed in was not suitable.
In the present case, RR challenged the allocations scheme operated by Enfield as being unlawful, dividing his grounds of challenge into two parts:
(i) grounds 1 and 2 which challenge Enfield’s own interpretation of its allocation scheme and allege that there is nothing within the allocation scheme which means that there is a cap on the priority to be afforded to RR;
(ii) grounds 4 to 7 which assert that if there were such a cap then it would be unlawful as it breaches the anti-discrimination provisions as set out in the ECHR and/or the Equality Act 2010.
HHJ Karen Walden-Smith concluded that the claimant failed to establish Grounds 1-2 and 4-6, with Ground 3 not being proceeded with.
She said: “The challenge succeeds to an extent under Ground 7, in that Enfield have failed in their duty of inquiry pursuant to section 149 of the Equality Act 2010. There is no remedy, however, as the outcome would not have been any different for RR and his family had Enfield complied with its obligations.”
The judge said: “The challenge is based upon the way in which, it is said by RR, the allocations scheme treats those who benefit from temporary accommodation and how that disadvantages them when seeking allocation of permanent accommodation.”
She added: “The challenge on behalf of RR is that applicants in the homelessness cohort will not be awarded an alternative or additional priority based on their personal circumstances and will be capped at 200 or 300 points, depending upon the nature of their homelessness rather than their personal circumstances, whereas non-homeless applicants can be awarded up to 1000 points. The contention is that the homeless and disabled applicant will receive far fewer points than the comparable applicant who is not homeless.”
Considering grounds 1 and 2, the judge observed that the court’s role is not to get involved in questions of how priorities are accorded in housing allocation policies as that is “a matter of judgment requiring local knowledge and expertise”.
However, she noted that the challenge under grounds 1 and 2 was not with respect to how priorities are accorded in the allocation scheme, but the meaning of that allocation scheme.
The judge said: “While it is accepted that the allocation scheme is clear that additional points cannot be awarded to an applicant who has points awarded as being Homeless or Threatened with Homelessness, RR does not accept that his application is excluded from the Health and Wellbeing reasonable preference group because the application is entitled to be in the Homeless or threatened with homelessness.
“If RR’s application falls within the Health and Wellbeing Reasonable Preference Group, which requires a high health and wellbeing need, then the application ought to have been awarded 1,000 points.”
She observed that RR’s representatives had “misinterpreted” the reference to ‘category’ as being a reference to the Reasonable Preference Group.
She said: “There is no “highest RPG wins”, rather if the applicant falls within a particular group then the highest category is awarded.”
She continued: “However, while the allocation scheme prohibits additional points under the Additional Preference Groups being awarded to an applicant awarded points as being Homeless or Threatened with Homelessness, that does not mean that an applicant, in the appropriate circumstances, cannot fall within a different Reasonable Preference Group. The allocation scheme does not include such a prohibition.”
The judge concluded on grounds 1 and 2: “Grounds 1 and 2 of this judicial review challenge are not made out. There has been no misreading of the allocation scheme and it is neither unclear nor contradictory. […] There is no contradiction between “highest RPG wins” as it is put by RR and the decision challenged. It is not “highest RPG wins” but the highest category within the RPG that the applicant can be placed in, and that has happened here. For the reasons already set out, RR cannot fall within the high Health and Wellbeing Reasonable Preference Group given the circumstances of the part 7 housing.”
On ground 4, RR contended that he had been discriminated against, contrary to the provisions of Article 14 of the ECHR.
Article 14 provides:
“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 status.”
The judge noted that in order to rely upon Article 14, it was accepted on behalf of RR that the claim must fall within the ambit of Article 8. However, the judge concluded that the workings of the allocations policy does not engage Article 8.
She said: “Z is authority for the broader proposition advanced by Enfield that the workings of the allocations policy does not engage Article 8. In these circumstances, RR cannot challenge Enfield on the basis that there is a breach of Article 14 rights.”
Turning to ground 5, the judge found that any discriminatory affect caused by the allocation scheme not awarding Health and Wellbeing points […] is “justified” because the local authority can resolve the homeless person’s homelessness by making an offer of suitable accommodation under Part 7 of the HA 1996.
She said: “The only adjustment would be to place a household with disability into the Health and Wellbeing category, but that would run entirely counter to the policy devised by the local authority which is a matter for the local authority to determine”.
On ground 6, RR contended that the allocation scheme “indirectly discriminates” against those households with disability.
Section 19 of the EA 2010 provides that:
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a PCP 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 characteristic,
(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.”
The judge noted that indirect discrimination requires a “causal link” between the PCP and the particular disadvantage suffered by the group and the individual.
However, there is no requirement that every member of the group is disadvantaged.
She concluded: “RR cannot establish that there is any disadvantage. Any evidence would need to be germane to the PCP and it is not sufficient for bald assertions to be made in order to make out a prima facie case. In the circumstances ground 6 also cannot succeed.”
The final ground of challenge (ground 7) was that Enfield had breached its Public Sector Equality Duty (“PSED”) in a number of ways.
RR contended that the council were in breach of the PSED as there was a failure to monitor or record how many households with disabilities were owed the main housing duty by Enfield, how many households with disabilities were in unsuitable accommodation; and how long such households typically waited to be housed.
The judge said: “After the close of oral submissions, RR’s representatives made reference to the report of the Equality and Human Rights Commission (EHRC) which provides some insight into the issues faced by disabled households.
“Enfield say that the inclusion of the EHRC report was not agreed to be before the court because it was not relevant to the challenged PCP as it is a report dealing with disabled persons’ experience of housing generally in the context of a UN Convention right to housing. It does not deal with disabled people who are owed the main housing duty and who are accommodated by local authorities and it does not provide relevant statistical evidence.”
She continued: “I accept Enfield’s submissions that the EHRC, while highlighting the very real difficulties faced by households with a disability, does not provide the evidence that RR is seeking. It does not show that there is a disproportionate impact upon households with a disability. However, it does provide support for the contention raised on behalf of RR that Enfield is failing to collect and analyse data relating to the impact of allocation decisions upon households with a disability and, in my judgment, Enfield has failed in fulfilling its PSED obligations in this respect.”
The judge found that the judicial review was partially made out under Ground 7, due to the failure on the part of the council in fulfilling its PSED obligations under section 149 of the EA 2010, by its failure to both monitor and record statistics relating to the allocation of housing to disabled households.
However, her final conclusion was that the judicial review challenge must fail. She concluded: “For the reasons set out, RR fails to establish Grounds 1-2 and 4-6, Ground 3 not being proceeded with. The challenge succeeds to an extent under Ground 7, in that Enfield have failed in their duty of inquiry pursuant to section 149 of the EA 2010. There is no remedy, however, as the outcome would not have been any different for RR and his family had Enfield complied with its obligations.”
Lottie Winson
