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

A local authority’s allocation functions under Part VI of the Housing Act 1996 do not generally impose a freestanding duty to provide accommodation of a particular type or within a specified period. Section 11(2) of the Children Act 1989 requires arrangements having regard to children’s welfare, but does not enlarge the underlying housing functions. Compliance may be achieved through an allocation scheme, priority mechanisms and interim risk-management measures. Article 8 does not itself create a right to housing where reasonable steps are being taken to protect family life. Courts should not compel earmarking or private procurement of housing where that would bypass the statutory allocation scheme and involve political resource-allocation decisions.

MJ, a tenant of Islington, sought permission to bring judicial review proceedings concerning accommodation occupied with her adult children, including A, who has severe autism, learning difficulties and no sense of danger. The property was above ground level and lacked suitable bathing facilities.

Islington had awarded housing points, placed the family in a supported-choice category, assessed the family as high risk and established a risk-management plan. Permission had previously been refused by a judge of the High Court, and MJ renewed the application.

The proposed grounds alleged breaches of section 11(2) of the Children Act 1989, Islington’s allocation scheme and protocol, and Article 8. The central issue was whether the absence of a suitable offer made any of those grounds arguable.

1. Permission refused. The court scrutinised Islington’s conduct by reference to objective evidence. A local authority’s conscientious performance should not simply be assumed: R(E) v London Borough of Islington [2017] EWHC 1440.
2. The allocation scheme and protocol did not arguably require two suitable properties to be offered within six months. The protocol’s requirement that high-risk actions be implemented as soon as possible and no later than six months was satisfied by measures giving MJ priority and supported-choice status. The scheme depended on finite housing stock and contained no stated time limit for supported-choice offers.
3. Section 11(2) of the Children Act 1989 did not alter the scope of Islington’s Part VI functions or create a new duty to offer housing within a specified period. The duty was to make arrangements for discharging those functions having regard to the welfare of all children in the borough. The allocation scheme, protocol and TAC risk-management plan were capable of satisfying that obligation.
4. Article 8 was not arguably breached. Islington had taken steps to protect A’s rights and to expedite rehousing within the statutory scheme. The court would have permitted A to be added as a claimant if that were the only obstacle to an Article 8 claim.
5. The requested mandatory order would effectively require Islington to source and earmark private-sector properties. Local authorities generally could not earmark acquired properties for one resident because of the unfairness to others: R (Begum) v Tower Hamlets [2003] HLR 8 and R (Bell) v Lambeth [2022] HLR 45. Such an order would also involve substantial expenditure and political resource-allocation decisions outside the court’s proper role. A material change, namely MJ’s bidding for three-bedroom properties after one son became willing to move out, provided an additional reason to refuse permission.

• High Court: Permission to apply for judicial review was refused by C M G Ockelton, Vice President of the Upper Tribunal sitting as a judge of the High Court, on 15 September 2023.
• High Court (Administrative Court): On renewal, the application for permission was refused.