Social Housing Speed Read: Allocation of temporary accommodation subject to judicial review
17th May, 2023
For the first time in 20 years the number of households in temporary accommodation exceeds 100,000 and the severe shortage of social housing means people can remain on the housing register for life.
So, how can local authorities and housing associations go about fairly allocating their limited property resources to eligible candidates?
A recent judicial review case highlights the importance of having, and operating a rational and lawful allocation scheme to ensure compliance with the Part IV of the Housing Act 1996 (“HA 1996”).
Facts of the case
The Claimant (“Mr J”) has uncontrolled epilepsy causing major seizures, chronic musical pain affecting his mobility.
In 2018, he applied to the Defendant Local Authority, City of Westminster, (“Westminster”) for housing for himself, his wife and their two children. They were allocated temporary accommodation in a 2 bedroom flat, on the 16th floor, with internal stairs. Mr J was also placed on the Westminster’s “Homeless” register.
The internal staircase meant the property was unsuitable for Mr J, due to his mobility issues. Westminster accepted this in 2018 and, later in 2021, accepted the family needed a 3 bedroom property (because Mr J’s wife was unable to sleep in the same bed as her husband due to his seizures at night affecting her sleep). Despite this, they were not re-housed.
After Mr J brought a claim in 2022, the family were offered a 3 bedroom flat with no internal steps. Mr J accepted this on the condition that alterations were made to the bathroom. These alterations were not finished at the time of the hearing, and the family were still living in the unsuitable 2 bedroom flat.
Judicial Review Grounds
Mr J brought a judicial review claim on the following grounds:
- Westminster breached its duty under s193(2) HA 1996 to provide him with suitable accommodation.
- Westminster’s refusal to place him in the “Medical Priority Group” was unlawful because it denied him of “reasonable preference” under s166A(3) HA 1996.
- Westminster’s failure to provide him with information on when suitable accommodation was likely to be available was a breach of their duty under s166A(9)(a)(ii) HA 1996.
Decision
Ground 1: Breach of main housing duty
By the time the claim was issued, the Mr J had been living in the unsuitable flat for 3 years and 8 months. Westminster accepted the property was unsuitable back in 2018, but did not re-house him. This was a breach of their duty under s193(2) HA 1996, albeit the breach was no longer on-going, as the 3 bedroom flat’s alterations were finished at the date of the judgment.
Ground 2: Denial of a “reasonable preference”
This was based on a specific clause of Westminster’s allocation policy, which read:
“Accepted homeless households living in temporary accommodation will not be eligible for [Medical Priority]. It is the Council’s statutory duty to ensure that suitable temporary accommodation is provided”
Mr J argued he was denied “reasonable preference” as this policy prevented him from being in the Medical Priority group whilst he was in the Homeless group and living in temporary accommodation. The court was not convinced.
In reality, “medical properties”, to which Mr J was eligible, were advertised to both the Homeless group and Medical Priority group. As such, he would have had priority over those in the homeless group who did not have a need for that particular type of home. Therefore, he did have “reasonable preference”. Westminster had not breached their duty under s166A(3) HA 1996.
Ground 3: Breach of s166(A)(9)
Mr J requested information from Westminster and argued this was not provided, stating this was a breach of their statutory duty under s166A(9)(a)(ii) HA 1996.
However, it was not a statutory obligation under s166A HA 1996 to provide the information. Instead, the statutory obligation was for the allocation policy to contain a right for the applicant to request such information – which it did. Therefore, this ground of appeal failed.
Conclusion
This case highlights a local authorities wide discretion in how it allocates accommodation – with priority being a matter for the local authority to decide. Policies must give “reasonable preference” to those in the categories set out in s166A(3) HA 1996 (including those who are homeless or need to move on medical grounds), but this is by no means a requirement to give absolute priority to those people.
Local authorities and housing associations should take care in drafting their allocation policies to ensure they do not fall foul of Part VI of the Housing Act 1996. It is important to ensure an allocation policy for assigning priority in candidates is not irrational, for fear of it being unlawful and resulting in a claim.
If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact one of our expert Social Housing solicitors.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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