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

Part VI of the Housing Act 1996 gives local housing authorities a wide discretion when allocating accommodation, subject to ordinary public law duties and compliance with their published allocation scheme. Section 160A(3) prevents allocation to a person subject to immigration control, but does not prevent an authority from taking account of that person’s household members who are subject to immigration control. The authority may decide, using the ordinary meaning of “household”, whether adult children form part of the applicant’s household. In making that assessment it may consider their age, precarious immigration status and the potential recourse to public funds involved. A reasonable interpretation of the allocation policy does not amount to a departure from the policy merely because the policy contains no detailed definition of “household”.

The claimant sought judicial review of Islington Council’s decision to exclude her five adult children, who were subject to immigration control, when assessing the size of accommodation for which she could qualify under its Part VI allocation scheme. The claimant lived with her husband, adult children and grandchildren in overcrowded accommodation. The Council treated the adult children as outside her household and limited her assessment to smaller accommodation.

The claimant argued that section 160A of the Housing Act 1996 did not permit the Council to disregard household members, that the Council had failed to follow its allocation scheme, and that its decision was irrational. The central questions were whether immigration-control provisions prevented the children being considered, and whether the Council had lawfully interpreted and applied the term “household”.

1. The application for judicial review was refused. The Council’s decision and the orders sought by the claimant were not quashed.

2. Part VI of the Housing Act 1996, particularly section 159(7), confers a wide discretion on local housing authorities to decide how accommodation should be allocated. That discretion remains subject to ordinary public law duties and to the authority’s allocation scheme. Authorities must allocate accommodation in accordance with their published scheme.

3. Section 160A(3) makes a person subject to immigration control ineligible for an allocation, unless regulations prescribe otherwise. Following R (Kimvono) v Tower Hamlets London Borough Council, the provision does not prevent an eligible applicant from being allocated accommodation merely because a member of the applicant’s household is subject to immigration control. The applicant’s adult children were not themselves tenants or proposed tenants of the accommodation.

4. The Council was not required to include the adult children in its assessment. It was entitled to interpret “household” according to ordinary usage and to decide whether the children were members of the claimant’s household. Their ages and precarious immigration status were relevant considerations. The Council was also entitled to consider the potential recourse to public funds, consistently with the considerations identified in R v Secretary of State for the Environment, ex parte Tower Hamlets London Borough Council and reflected in the Immigration Rules.

5. The absence of a detailed definition of “household” in the allocation scheme did not make the Council’s interpretation unlawful. The Council had applied, rather than departed from, its policy. Its interpretation was reasonable in light of the family’s circumstances and the Council’s local knowledge. The application was therefore refused, with costs to the Council subject to the usual public funding qualification.