YA v London Borough of Hammersmith And Fulham

A spent conviction must be disregarded for legal purposes, including the conduct constituting the offence, unless the statutory exception applies. A local authority’s housing-allocation process under Part VI of the Housing Act 1996 is administrative, not proceedings before a judicial authority for this purpose. A scheme may nevertheless engage article 14 because it falls within the ambit of article 8. Care leavers constitute an “other status”, and a rule excluding applicants with unacceptable behaviour is capable of indirect discrimination against them. Such discrimination may be justified where the rule pursues community safety and prudent management of scarce housing, is rationally connected to those aims, is necessary, and strikes a fair balance.

The claimant, a care leaver, challenged the defendant local authority’s decision refusing him entry to its housing register through the Care Leavers’ Quota. His convictions, arising from offences committed during childhood, were spent by the date of the decision. The authority nevertheless relied on the convictions and the conduct said to constitute them when applying its allocation scheme’s exclusion for applicants guilty of unacceptable behaviour.

Permission was granted on grounds under section 4(1) of the Rehabilitation of Offenders Act 1974 and irrationality. A renewed article 14 ground was also considered. The central issues were whether the spent convictions and related conduct could lawfully be considered, whether the housing process attracted the exception in section 7(3), and whether the allocation scheme unlawfully discriminated against care leavers.

1. Rehabilitation of Offenders Act 1974. Section 4(1) required the claimant to be treated for all purposes in law as someone who had not committed, been prosecuted for, convicted of or sentenced for the spent offences. The Convictions Document contained details of convictions and sentences. The decision-maker’s references to “behaviour” were in substance references to the offences and the conduct constituting them. Section 4(5) reinforced that conclusion. The decision was therefore unlawful insofar as it relied on the spent convictions or the conduct constituting those offences.
2. Section 7(3). The Part VI housing-allocation process was administrative. It identified a pool of applicants to whom housing might be allocated and did not adjudicate rights between third parties. It was therefore not proceedings before a judicial authority under section 4(6). In any event, the careful process required by Adamson v Waveney District Council [1997] 2 All ER 898 had not been followed. The relevant material had not been assessed for genuine relevance before being relied upon.
3. Article 14. The allocation scheme affected the claimant’s private life and was within the ambit of article 8, despite there being no absolute right to accommodation. Care leavers had an “other status” because their experience of being looked after under a statutory regime constituted an acquired personal characteristic. The evidence indicated that the unacceptable-behaviour criterion was likely to disadvantage care leavers as a group, and statistical evidence or a comparator was not essential.
4. The discrimination was justified. The rule pursued legitimate aims, including protecting residents, promoting community safety and managing scarce public resources. It was rationally connected to those aims and was the least intrusive measure. The Care Leavers’ Quota and the director’s discretion prevented the rule from operating as an absolute bar. Applying the proportionality test stated in R(Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57, a fair balance had been struck. The article 14 ground failed, and permission on that ground was refused.