Ariemuguvbe, R (on the application of) v London Borough of Islington

A local housing authority has a broad discretion under Part 6 of the Housing Act 1996 when deciding the size of accommodation to allocate. Statutory restrictions on allocating accommodation to persons subject to immigration control delimit that discretion. They do not exhaust the considerations which the authority may take into account.

The authority may consider the age and independence of an applicant’s adult children, their ability to arrange their own housing and whether accommodating them would give them recourse to public funds contrary to their immigration conditions. An allocation scheme should be interpreted practically, flexibly and with common sense. A requirement to consider the needs of household members does not require points to be awarded for every person living in the applicant’s home.

The appellant sought judicial review of the London Borough of Islington’s refusal to increase her housing-allocation points to reflect five adult children and their children living with her and her husband in a three-bedroom property. The adult children were subject to immigration control, could not work and had no recourse to public funds.

Cranston J dismissed the claim. He held that the authority had reasonably interpreted and applied its allocation scheme when treating the adult children as independent adults and considering their precarious immigration position.

The appellant appealed, contending that the children formed part of her household, that their immigration status was irrelevant and that the authority had failed to recognise overcrowding. The central issue was whether Part 6 of the Housing Act 1996 or the allocation scheme prevented the authority from taking the children’s adulthood, independence and immigration status into account.

1. Appeal dismissed. Sullivan LJ held that section 159(7) of the Housing Act 1996, subject to the other provisions of Part 6, conferred a very broad discretion concerning the manner in which a local housing authority allocated accommodation. Islington was entitled to decide that allocating a larger property was inappropriate because the appellant’s children were independent adults who should be able to arrange their own housing and because accommodating them would give them recourse to public funds contrary to their immigration conditions.

2. Section 160A(3) did not compel the authority to refuse a larger allocation merely because the children were subject to immigration control. Nor did it make their immigration status legally irrelevant. Statutory prohibitions concerning persons from abroad delimit the area within which the authority may exercise its discretion; they do not prescribe every consideration which may be taken into account. The authority could therefore consider that the adult children would have been ineligible for accommodation if they had applied in their own right.

3. The conclusion in R (Kimvono) v Tower Hamlets London Borough Council [2001] 33 HLR 239 that a dependent child’s immigration status was legally irrelevant was not accepted. Kimvono itself recognised that immigration status could become relevant where the dependant’s position was precarious. The decisions in Akinbolu v Hackney London Borough Council [1997] 29 HLR 259 and R v Secretary of State for the Environment, ex p Tower Hamlets LBC [1993] QB 632 confirmed the potential relevance of immigration status and public funding considerations.

4. The allocation scheme required a practical and common-sense interpretation. Even assuming that the adult children belonged to the appellant’s household, the scheme did not require points for every household member. Their needs as independent adults differed from those of dependent children or relatives unable to secure their own accommodation.

5. The authority had complied with section 167(2)(c) by framing its scheme to give reasonable preference to persons living in overcrowded housing. The adult children did not have to share the appellant’s home but chose to do so. Their presence therefore did not require the authority to award further overcrowding points.

Smith LJ agreed. Lord Neuberger MR agreed and emphasised that published housing-allocation schemes should be clear, short and simple, and should be interpreted with practical flexibility. The appeal was dismissed unanimously.

1. Court of Appeal (Civil Division): Dismissed the appellant’s appeal and upheld Cranston J’s dismissal of the judicial review claim.
2. High Court, Queen’s Bench Division, Administrative Court: Cranston J dismissed the application for judicial review by an order dated 24 February 2009. No citation is stated in the judgment.