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

A housing allocation scheme may give different priority to overcrowded applicants in the private and public rented sectors where the distinction reflects significant differences in tenure, security and realistic housing options. The court must assess the scheme in its statutory and practical context, allowing appropriate weight to the local housing authority’s judgment on scarce housing resources. A reduction in priority will remain lawful if the authority rationally identifies a legitimate objective, such as reducing overcrowding by removing incentives to remain in unsuitable accommodation, and the means adopted are proportionate. The scheme must nevertheless continue to provide reasonable preference under Housing Act 1996, section 166A(3), and individual exceptional circumstances may require separate consideration.

The claimant lived with her husband and four children in a seriously overcrowded privately rented flat. Under the defendant’s original allocation scheme she had Band A priority. An amended scheme reduced overcrowded private-sector homeseekers to Band C, while retaining higher priority for overcrowded public-sector transfer applicants.

The claimant sought judicial review, alleging that the distinction breached articles 8 and 14 of the European Convention on Human Rights and failed to secure reasonable preference under section 166A(3) of the Housing Act 1996. The parties agreed that article 8 was engaged, that the groups received different treatment, and that private-sector tenants formed an identifiable group. The central issues were whether the groups were analogous for article 14 purposes and whether the difference in treatment was justified and proportionate.

1. The application was refused. The amended scheme was lawful and the claimant’s Band C priority was not unlawful.
2. For article 14 purposes, public-sector transfer applicants and private-sector homeseekers were sufficiently comparable for a relevant comparison to arise. That did not prevent the authority from taking account of their significant differences in tenure, security and practical housing options.
3. The distinction pursued a legitimate objective: making the best use of increasingly scarce social housing and reducing overcrowding by removing a perceived incentive for private-sector families to decline homelessness assistance while waiting for a secure tenancy. The authority was entitled to rely on the reasoned advice of experienced officers, its monitoring of the original scheme and the consultation process.
4. The court rejected the contention that the scheme was driven by a supposed contractual duty to prevent overcrowding among the authority’s tenants. The operative justification was the practical difference between homeseekers, who could realistically seek alternative private accommodation, and transfers, for whom surrendering secure public-sector tenure was not a realistic equivalent.
5. The claimant’s personal difficulties in obtaining private rented accommodation had not been put before the authority during the review in sufficient detail. They could potentially have supported an exception, but did not establish that the scheme’s general justification was irrational or disproportionate.
6. The authority had regard to children’s welfare as required by section 11 of the Children Act 2004. That provision required regard to safeguarding and promoting welfare, but did not make children’s welfare paramount. The scheme continued to give reasonable preference to severely overcrowded private-sector households under section 166A(3) of the Housing Act 1996.