Osman, R (on the application of) v London Borough of Harrow

The claimant sought judicial review of the defendant council's amendment to its housing allocation scheme which downgraded overcrowded households living in the private rented sector from Band A to Band C. The primary legal issues were whether the amended scheme complied with the statutory requirement in section 166A(3) of the Housing Act 1996 to give a "reasonable preference" to persons occupying overcrowded housing and whether differential treatment of private sector homeseekers and public sector transfers engaged and violated article 14 (read with article 8) of the European Convention on Human Rights.

The judge held that article 8 was engaged but that any comparison between transfers and homeseekers had to reflect the significant differences of tenure and security between the groups. The council had a legitimate public‑interest aim — to reduce a perverse incentive created by the earlier scheme and to make best use of scarce social housing stock — and had taken reasoned, consultative steps based on officer advice and monitoring. The discrimination was therefore objectively justified and proportionate, the amended scheme continued to afford reasonable preference under section 166A(3), and the claimant's challenge failed.

Background and parties: The claimant, an unemployed mother living with her husband and four young children in a single‑bed private rented flat, was seriously overcrowded. Under the council's Original Scheme she had been placed in Band A but, following amendments to the allocation scheme that took effect on 1 December 2015, she was reassessed into Band C. She applied for a review and sought judicial review contending that the Amended Scheme unlawfully discriminated against private rented sector tenants contrary to articles 8 and 14 ECHR and failed to give the reasonable preference required by section 166A(3) of the Housing Act 1996.

Nature of the claim and relief sought: An application for judicial review seeking to quash the council's decision to apply the Amended Scheme to the claimant and, by implication, to declare the Amended Scheme incompatible with the claimant's Convention rights and statutory requirements.

Issues framed by the court: (i) Whether, for article 14 purposes, public sector transfer applicants were in an analogous position to private sector homeseekers occupying overcrowded accommodation; and (ii) if analogous, whether the differential treatment in banding was objectively justified and proportionate.

Court's reasoning and subsidiary findings:

• The court accepted that article 8 was engaged and that there was a relevant difference in treatment between the two groups for article 14 analysis.
• However, the court recognised significant, relevant differences between transfers and homeseekers — notably tenure security, succession rights, lower rents and other benefits of social tenancy — all of which bear upon the realism of moving into private sector housing and the prospects of resolving overcrowding by other means.
• The council had identified a legitimate aim: to remove a perverse incentive which had led some private sector households to decline homeless offers while waiting for social housing, thereby prolonging children's exposure to overcrowding. This aim was supported by officer monitoring, consultation and an equality impact assessment; the decision‑making process was not shown to be irrational or unlawfully motivated.
• The scheme preserved a reasonable preference for overcrowded households and allowed exceptions and reviews; individual hardship could be considered. The claimant's unparticularised evidence about difficulty securing private rented accommodation while on benefits was not put to the council on review and did not establish that the overall policy objective or its means were disproportionate.
• The court gave deference to the council's policy judgment in an area where Parliament conferred discretion and where resources are scarce, and concluded the discrimination (if any) was justifiable and proportionate.

Procedure & outcome: First instance judicial review hearing in the Administrative Court. The application for judicial review was refused.

The claim is dismissed. The court held that although article 8 was engaged and there was differential treatment between private sector homeseekers and public sector transfers, the differences in tenure and the legitimate public interest aim of removing a perverse incentive and making best use of scarce social housing meant the distinction was objectively justified and proportionate. The Amended Scheme continued to provide a reasonable preference for overcrowded households under section 166A(3) of the Housing Act 1996, and the council had acted lawfully and rationally following consultation and officer advice; accordingly the judicial review application was refused.