EM, R (on the application of) v The London Borough of Havering

The claimant brought judicial review of the defendant local authority's decision of 24 August 2023 refusing to add her to the Havering social housing register on the ground that she did not meet the local six-year residence requirement in the Housing Allocation Scheme 2021. The claimant, a long-term victim of domestic abuse, advanced two alternative bases: (1) that she fell within specified exceptions to the residence requirement in paragraph 2.3(ii) of the Scheme (notably exceptions (b) under-occupation and (c) the statutory reasonable preference categories including homelessness and medical/welfare need); and (2) that, if not, the Scheme was unlawfully discriminatory under section 19 Equality Act 2010 and/or Article 14 ECHR read with Article 8.

The court applied the established common-sense approach to interpreting allocation schemes (citing Flores and Ariemuguvbe and authority on purposive interpretation) and concluded that the Scheme’s exceptions to the residency qualification are not confined to applicants already resident in Havering unless that restriction is expressly stated. On the evidence (including an expert psychological report), the claimant satisfied exception (b) (under-occupation of her current social housing tenancy) and the reasonable-preference exceptions in (c) for homelessness and need to move on medical or welfare grounds. Accordingly the court declared that the defendant’s decision was wrong in law. The alternate discrimination/ECHR challenge was not determined because the claim succeeded on Ground One.

The claimant (a 58-year-old social housing tenant in Islington and a long-term victim of severe domestic violence) applied to join the Havering social housing register so she could move near her sister and away from her ex-husband. Havering refused because the claimant had not lived in the borough continuously for six years, as required by its Housing Allocation Scheme 2021.

The claimant sought judicial review. Permission was granted by a Deputy Judge and anonymity was accorded. The claimant sought declarations that she fell within exceptions to the residence requirement in paragraph 2.3(ii) of the Scheme (notably exception (b) under-occupation, and exception (c) the statutory reasonable preference groups covering homelessness and medical/welfare need), and alternatively argued that the Scheme indirectly discriminated against her under section 19 Equality Act 2010 and/or Article 14 ECHR read with Article 8.

The court framed four issues: (1) whether exception (b) applies only to under-occupiers resident in Havering or to social housing under-occupiers generally; (2) whether the medical/welfare reasonable-preference exception in (c) is confined to in-borough cases; (3) whether the homelessness exception in (c) is confined to in-borough cases; and (4) whether exceptional-need exception (h) requires in-borough residence (the fourth issue only arose if the claimant failed on the others).

The court applied a practical, common-sense approach to interpreting the Scheme (following Flores v Southwark and R (Ariemuguvbe) v Islington). It reasoned that where the Scheme intended to restrict an exception to Havering residents it said so expressly (for example, Band 2b expressly refers to "Havering assured or secure tenants who wish to downsize"). Reading the exceptions as confined to in-borough applicants would require implication of words not present and would be inconsistent with the structure of the Scheme (in particular the role of Band 3 as a residual band for identified housing need).

On the evidence, including the unchallenged expert opinion of Dr Eileen Walsh that the claimant needed to move on medical and welfare grounds, and the claimant’s established under-occupation and homelessness within the meaning of Part 7 of the Housing Act 1996, the court held that the claimant fell within exceptions (b) and (c). The court therefore declared the defendant’s decision of 24 August 2023 wrong in law. Because the claim succeeded on Ground One, the court did not determine the claimant’s alternative discrimination or ECHR grounds.

The claim succeeds. The court declared that, on the information before it, the claimant falls within exceptions 2.3(ii)(b) (under-occupation) and 2.3(ii)(c) (the reasonable preference groups for homelessness and medical/welfare need) to Havering’s six-year residence qualification, and therefore the defendant’s decision of 24 August 2023 refusing to add the claimant to the housing register was wrong in law. The alternate discrimination and ECHR grounds were not determined.