Lawful social housing allocation

As PR consultancy the London Communications Agency highlighted in October: ‘The need for new social homes is acute, with 1.3 million individuals and households currently on waiting lists.’ And in March, a London Borough of Enfield Housing Topic Paper supporting the Enfield Local Plan indicated that ‘Enfield is facing a shortage of social and affordable rented homes’ against a rising population ‘accompanied by a growing number of low-income households’. So, discharging duties under the Housing Act 1996 is always challenging for cash-strapped local authorities, navigating carefully between Scylla and Charybdis.

Nevertheless, the London Borough of Enfield recently resisted a judicial review challenge over the lawfulness of its social housing allocation scheme on the basis both of public law and anti-discrimination legislation. The case was R (RR) v London Borough of Enfield [2024] EWHC 2501 (Admin), judgment in which was given on 3 October 2024 by HHJ Karen Walden-Smith (sitting as a judge of the High Court).

The claimant (RR), married with two children aged four and one, is the primary carer for his wife (ED) who, following serious and life-changing injuries in a 2021 car accident, now suffers mobility problems, problems with vision and dizziness and constant pain in her legs, lower back and pelvis. As ED’s full-time carer, RR cannot work since he has to support and assist her with daily living, including washing, dressing and transfers to and from the bath and toilet.

The couple applied for housing assistance from Enfield which was treated as a homelessness application under part VII of the 1996 act (homelessness) and also assessed as a housing register application under part VI (allocation of housing accommodation).

Following assessment, RR was awarded 200 points for being in the ‘Homeless or threatened with homelessness’ cohort. RR challenged this decision, seeking a review of the 200 awarded points, as he contended that he ought to have been granted a medical and welfare priority. The allocation scheme provides that an applicant with a high health and wellbeing housing need will be awarded 1,000 points. However, under the scheme, health and wellbeing points are not available to applicants who have points awarded as being homeless or threatened with homelessness. In the scheme, high priority includes a life-threateningly urgent need to move or risk to the lives of others by the inability to self-evacuate in a fire.

RR challenged the allocation scheme in two headline groups. Grounds 1 and 2 challenged Enfield’s own interpretation of its allocation scheme, alleging that the scheme contains no cap on RR’s priority. Grounds 4-7 assert that if there were such a cap it would be unlawful discrimination under the European Convention on Human Rights (ECHR) and/or the Equality Act 2010.

The court noted the comments of Lord Neuberger in R(Ahmad) v London Borough of Newham [2009] UKHL 14, including that, generally ‘it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies’. Also, in the light of the decision of Dyson LJ (as he then was) in R (Lin) v London Borough of Barnet [2007] HLR 30, a homeless applicant is awarded relatively low points because suitable alternative accommodation is already being provided by the local authority. Grounds 1 and 2 of this judicial review challenge were therefore not made out. For, in the court’s view, there had been no misreading of the allocation scheme which was neither unclear nor contradictory.

While ground 3 (that Enfield had fettered its own discretion) was no longer pursued, ground 4 contended discrimination contrary to Article 14 (right to enjoy convention rights without discrimination). However, reliance on Article 14 requires the claim to fall within Article 8 (right to respect for private and family life). And R (Z & another) v Hackney LBC & another [2019] EWCA Civ 1099 held that the challenge to the local authority’s allocation scheme, brought by a family living in temporary accommodation, did not fall within Article 8. Dyson LJ refused an appeal in Dixon v Wandsworth LBC [2007] EWHC 3075 (Admin) since if Article 8 applied at all, part VI of the Housing Act 1996 struck the required balance required by Article 8. In the instant circumstances, ground 4 fell since Article 8 was not engaged.

Ground 5 contended that Enfield failed to comply with the duty under section 20 of the 2010 act to make reasonable adjustments to remove factors putting a disabled person at a substantial disadvantage compared with those without disabilities. However, the court found any discriminatory effect is justified by the authority’s making an offer of suitable accommodation under part VII of the 1996 act. Ground 6 alleging indirect discrimination under section 19 of the 2010 act failed because RR was unable to establish any material disadvantage.

Ground 7 contended that Enfield had breached its Public Sector Equality Duty (PSED) in section 149 of the 2010 act. This requires authorities to have due regard to the three equality aims in section 149(1): (a) elimination of prohibited discrimination; (b) advancement of equality of opportunity; and (c) fostering good relations between those with and without relevant protected characteristics.

Significantly, there is a duty of inquiry if relevant information is not available. Enfield had failed to collect and analyse relevant data and therefore failed in its PSED duties. However, following section 31(2A) of the Senior Courts Act 1981, since Enfield’s determination would have been no different had it fulfilled material PSED duties, and since suitable accommodation had been offered and accepted, the PSED challenge failed.

Nicholas Dobson writes on local government, public law and governance