R (on the application of C) v The London Borough of Islington

The claimant, a homeless victim of domestic violence, sought judicial review of aspects of the defendant council's 2015 housing allocation scheme. The challenges concerned (1) the refusal to award 40 Category C welfare points under the scheme, (2) the lawfulness of the council's undisclosed practice of making "direct offers" of social housing, and (3) the legality of the local lettings policy including complaints of discrimination under Article 14 read with Article 8 ECHR, the Equality Act 2010 and the Children Act 2004.

The court held that welfare points in the scheme are discretionary and require an evaluative judgment; "settled accommodation" in the scheme can, depending on facts and degree, include Part VII temporary accommodation. Applying those principles to the claimant's evidence (including clinical opinion), the council was entitled to conclude the claimant's present accommodation amounted to settled accommodation and lawfully refused the 40 welfare points.

The court found the council's practice of making direct offers to applicants with only 100 points was not ascertainable from the published 2015 scheme and that essential procedural criteria for direct offers were not disclosed. That practice and the council's decision and review in the claimant's case were therefore unlawful.

The court rejected the claim that the local lettings policy was unlawful: Article 14 applied but the policy was justified as a proportionate exercise balancing competing allocation objectives, the public sector equality duty had been considered, and the council had discharged duties under section 11 of the Children Act 2004.

Background and parties:

• The claimant is a mother of three, profoundly deaf, who became homeless after domestic violence and was accepted by the defendant council as owed the full rehousing duty under section 193(2) of the Housing Act 1996. The defendant placed her in leased accommodation within the borough and assessed her under its "Housing allocation scheme 2015" as having 110 points (100 residence, 10 homelessness).
• The claimant challenged the points award and aspects of the 2015 scheme by judicial review. Permission had been granted and the matter proceeded to a "rolled-up" hearing.

Nature of the claim and relief sought:

• The claimant sought judicial review of (i) the refusal to award 40 Category C welfare points, (ii) the lawfulness of the council's practice of allocating social housing by undisclosed "direct offers", and (iii) the lawfulness of the local lettings policy including discrimination claims under Article 14 read with Article 8 ECHR, sections 29 and 149 Equality Act 2010, and breach of section 11 Children Act 2004.

Issues framed by the court:

1. Whether the council was obliged by the 2015 scheme to award Category C welfare points where an applicant or household member cannot reasonably be expected to find settled accommodation.
2. The meaning of "settled accommodation" in the scheme and whether it must mean Part VI social housing.
3. Whether the council's practice of making direct offers to applicants with lower points was ascertainable from the published scheme and lawful under section 166A of the 1996 Act and common law principles (including Lumba).
4. Whether the local lettings policy unlawfully discriminated against homeless persons, victims of domestic violence and therefore women, and if so whether discrimination was justified; and whether the council complied with the public sector equality duty and section 11 Children Act 2004.

Court's reasoning and conclusions:

• On welfare points and "settled accommodation": the court analysed the 2015 scheme and concluded welfare points are discretionary and involve evaluative judgements; "settled accommodation" is a question of fact and degree and is not limited to Part VI social housing. The claimant's expert (Dr Gratton) recommended permanent housing to assist PTSD treatment, but her evidence did not establish that the claimant had a need for settled accommodation not already met. The council was entitled to conclude the claimant's Part VII accommodation, occupied for about a year and likely to continue, amounted to settled accommodation and lawfully refused Category C points.
• On direct offers and procedure: the court found that, in practice, the council made direct offers to applicants with 100 points and that this material practice was not ascertainable from the published 2015 scheme nor did the scheme set out the criteria for direct offers. That lack of disclosure and procedural clarity produced unlawful decision-making contrary to section 166A(1) and principles in R (Lumba) v SSHD. The claimant's decision and the review were therefore unlawful and require reconsideration.
• On the local lettings policy and discrimination: Article 14 applied and the court accepted the claimant and beneficiaries were in analogous positions. However, on proportionality the council's objectives (stable communities, facilitating new development and "churn" to free housing) were legitimate and the policy was rationally connected to them. The court gave weight to the council's equality impact assessment, monitoring, and evidence that the policy generated consequential lets benefiting homeless households. The policy struck a fair and proportionate balance and did not amount to unlawful discrimination; the council had given due regard to the public sector equality duty and had regard to section 11 Children Act 2004.

Remedies and outcome:

• The court granted relief in part. It declared and held unlawful the council's practice and decision-making around direct offers and required reconsideration. It refused relief on the welfare points challenge and on the challenge to the local lettings policy. The claimant was given permission to rely on further evidence and the council must reconsider her application in light of the judgment.

The application for judicial review was allowed in part. The court held that (a) the refusal to award 40 Category C welfare points was lawful because the 2015 allocation scheme gives the council a discretionary evaluative role and the claimant's present Part VII accommodation could properly be regarded as settled accommodation in the circumstances; (b) the council's practice of making direct offers to applicants with only 100 points was not disclosed by the published scheme, lacked stated criteria and was therefore unlawful, and the council's original decision and review in the claimant's case were unlawful; (c) the local lettings policy was not unlawful: Article 14 applied but the policy was justified as proportionate, the public sector equality duty had been addressed, and section 11 Children Act 2004 was not breached. The council must reconsider the claimant's application consistently with the judgment.

Proceedings commenced by claim form dated 21 July 2016; permission for judicial review granted by Jefford J on 26 October 2016; hearing before Mr Justice Jeremy Baker on 2 and 3 February 2017; judgment delivered 31 May 2017. R (Woolfe) v Islington LBC [2016] EWHC 1907 (Admin) was relied on in the pleadings and limited some challenges.