England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24th February 2009

1. MR JUSTICE CRANSTON: The issue in this judicial review is whether Islington London Borough Council ("Islington Council") were entitled to ignore the claimant's adult children, who are subject to immigration control, when considering the allocation of accommodation under Part VI of the Housing Act 1996. In particular, the question arises as to whether Islington Council may conclude that the claimant's adult children are not part of her household under their allocation policy. In practical terms, the case boils down to whether, in exercising their powers under Part VI of the Housing Act 1996, the Council can refuse to allocate larger accommodation to the claimant. The challenge is by way of judicial review in relation to a decision set out in letters dated early last year, whereby Islington Council decided to exclude the claimant's five adult children in their assessment of what constituted suitable accommodation under their allocation policy.

Background

2. The claimant arrived in the United Kingdom from Nigeria in 1991 and claimed asylum. There is no need to enquire into the details of that claim, because in 1994 she married her first husband, a British citizen. In 1998 her five children joined her from Nigeria. In 2000 she and her children moved out of the accommodation they then enjoyed following, on her account, domestic violence perpetrated by her first husband. Eventually the claimant made a homelessness application and Islington Council accepted that they had a duty to her in June 2003. The family were provided with bed and breakfast accommodation in Kings Cross and were then placed in four-bedroom-type bed and breakfast accommodation for a period of 2 years. Subsequently, they were given accommodation in a four-bedroom property. However, that property was to be demolished and the claimant was granted an increased points level in keeping with her application to Islington Council to provide alternative temporary accommodation under Part VII of the Housing Act 1996. Initially, the claimant had been offered another four-bedroom property, which was refused. In June 2007 she was offered an alternative three-bedroom property in Airdrie Close, N1 and a tenancy agreement was completed in the middle of July 2007. The landlord is a housing association. The claimant accepted the offer reluctantly, concerned as to the overcrowding that resulted. It is common ground that the property is overcrowded. At the date of Islington Council's decision, the claimant lived at that property with her second husband, whom she had married in April 2005. At the time there were also five adult children: three daughters aged 22, 29 and 31, and two sons aged 24 and 27. In addition, there were three grandchildren, all under 2 years of age. Subsequently, the two sons have left the property, one having been removed to Nigeria and the other having married and moved out with his partner.
3. The claimant's application under Part VI of the Housing Act 1996 is for permanent accommodation. There is a long correspondence between the claimant's representatives and Islington Council. The story can be taken up with the letter from the claimant's legal representatives on 28th November 2007, where the family members are identified — the husband, the five adult children and the three grandchildren — and the argument advanced that the claimant is entitled to a much larger property under the allocation scheme of the Council. Islington responded in the middle of December 2007 and said that the claimant's accommodation was offered to her and her grandchildren:

"Your client's adult children, albeit not part of the original housing application, are not part of your client's household. As adult children subject to immigration control, it would be inappropriate for my client to take them into account when assessing suitability of accommodation."

There was a further letter from the claimant's legal representatives in early February 2008, where the Council's argument was refuted. In response, on 19th February Islington Council wrote that it was its stance that the claimant's adult children "are not dependent children who are reasonably expected to reside with the applicant. They are independent adult children with families and therefore should be able to make their own arrangements regarding housing." There was a further letter from Islington Council, incorrectly dated 19th February, but actually sent on 17th March 2008, where the Council again reiterated that the claimant's adult children were subject to immigration control, had been admitted to the United Kingdom on condition that they did not work and have no recourse to public funds. They had no income and were being supported by the claimant. The provision of large larger accommodation, the letter said, "would amount to recourse to public funds by her adult children and accordingly a breach of their conditions of entry to the UK. In these circumstances, the authority does not accept that your client's adult children 'normally reside' with her within the meaning of section 176 of the Housing Act 1996." Reference was made to a decision discussed below: R (Kimvono) v Tower Hamlets London Borough Council (2000) 33 HLR 78.

The legislative framework

4. There are three areas of legislation relevant to this judicial review. The first concerns the general statutory duty to house on local authorities, the second is the obligation of councils to have an allocation policy and the third relates specifically to the obligation to persons who are subject to immigration control.

(a) Statutory duty

5. Under section 159(1) of the Housing Act 1996, a local housing authority is required to comply with Part VI of the Act in allocating accommodation. "Allocation" is defined in section 159(2) to involve the selection, or nomination, of a person to be a secure or assured tenant of either local authority housing or housing provided by a registered social landlord. Section 159(7) reads:

"Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate."

The wide statutory power conferred on local housing authorities must be exercised in accordance with the ordinary public law duties to which public bodies are subject. Otherwise, however, and subject to the application of its allocation policy, the case law has a wide discretion on local housing authorities to make the decisions necessary to allocate housing. The decision of R v London Borough of Lambeth, ex parte Ly (1986) 19 HLR 51 is illustrative. That, in short, was a decision where a local housing authority had an application before it under what is now Part VII of the 1996 Act, in other words, an application under the homelessness provisions. The court held that who was to be a "person who might reasonably be expected to reside with" an applicant was a question of fact to be decided by the local authority itself. Simon Brown J (as he then was) said at page 55 that he could see no reason why, as a matter of law, the local housing authority should not attach some relevance to the fact that the four older children involved in the application were prepared, albeit with some reluctance, to be accommodated separately from the rest of the family. He could see no reason why the authority should be obliged to close their eyes to the virtual impossibility of providing a single unit for the entire family of 11, as it was in that case. Simon Brown J continued that it seemed to him that the authority could properly take into account both that the offer that they made would leave the two parts of the family only some two miles apart and that it might well have been possible then to re-accommodate the rest of the family yet closer still.

6. The considerable discretion conferred on local authorities, recognised by Simon Brown J, is echoed in the recent decision of the House of Lords in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7; [2009] 1 WLR 413. That was a case where the local authority had appealed against a decision of the Court of Appeal that it, the local authority, had erred in law in finding that the respondent father did not have a priority need for housing because he was not a person with whom the dependent children "might reasonably be expected to reside" under the homelessness provisions of the Housing Act 1996. The Court of Appeal had held that once a family court had decided that residence between parents should be shared, the housing authority could not deny that the children "might reasonably be expected to reside" with the applicant for the purposes of section 189(1)(b) of the Act. The House of Lords allowed the appeal and held that the two issues — the one before the family court and the one before the housing authority — were different. The House of Lords said that the social norm, that children should be able to live with both parents, had to be applied in the context of a scheme for allocating scarce housing resources. The Court of Appeal had fallen into error in holding that the fact that housing is a scarce resource should be regarded as irrelevant to the question of whether it is reasonable to expect children to live with a homeless parent. The two procedures for deciding different questions should not be allowed to become entangled. In the course of his speech, with whom the other law lords agreed, Lord Hoffmann said that there was no reason in logic why the fact that Parliament had made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the applicant should require that question to be answered without regard to the purpose for which it was being asked, namely to determine priority in the allocation of a scarce resource. Lord Hoffmann said that to ignore that purpose would not be a rational social policy. It did not mean, he said, that a housing authority could say that it did not have resources to comply with its obligations under the Act. Parliament had placed upon it a duty to house the homeless, but "so far as the criteria for those priorities involve questions of judgement, it must surely take into account the overall purpose of the scheme" (para 16). Later Lord Hoffmann said:

"The [family court] order, if made, will only be part of the material which the housing authority takes into account in coming to its decision" (para 17).

(b) Allocation Scheme

7. Section 167(1) of the Housing Act 1996 obliges each local housing authority to have an allocation scheme for determining priorities and for setting out the procedure to be followed in allocating housing accommodation. Under section 167(2) the scheme is to be framed to secure that reasonable preference is given to the various groups identified, one of the groups being those in overcrowded housing (167(2)(c)). Under 167(8) a local housing authority must not allocate accommodation except in accordance with their allocation scheme:

"A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme."

The case law establishes that housing allocation which is not made in accordance with a local housing authority allocation scheme will be unlawful. Moreover, in particular cases a failure to apply the scheme when making an allocation may be unlawful.

8. In Sahardid v Camden London Borough Council [2004] EWCA Civ 1485, (2004) HLR 11, the Court of Appeal had before it a case where it was accepted that the applicant was unintentionally homeless and had priority need. The housing allocation scheme provided that a single mother, like the applicant, with a child under the age of 5, would ordinary be entitled to one-bedroom accommodation only. By the time of the council's review, the applicant's son was 5 years old. It was submitted on her behalf that the review letter had failed to consider the age of her son and the wording of the council's allocation scheme. The Court of Appeal held that the law required the council to allocate accommodation in accordance with its allocation policy and it had failed to do so. The council had failed to consider whether the applicant was entitled to two-bedroomed accommodation by virtue of the age of her son. In its allocation scheme the council had identified a cut-off of 5 years. It was the duty of the council to address the implications of the applicant's son reaching that age. The council, in the finding of the Court of Appeal, had not carried out a review which took account of its own policy. Accordingly, the Court of Appeal quashed the council's decision. Sir William Aldous said this:

"The law required Camden to allocate accommodation in accordance with the law and their stated policy. They did not purport to do so. They never considered whether the appellant was eligible for two-bedroomed accommodation or only one, having regard to the age of her son. This was a clear error of law that in my view cannot be excused, although it can be understood in the light of the papers that were before the reviewing officer at the time. The council knew of the age of the child, but it was not at the forefront of the solicitors' complaint put before the reviewing officer" (para 29).

(c) Those ineligible for housing

9. Under the Housing Act 1996 certain categories of persons are ineligible for the allocation of social housing. The provisions have recently been amended by schedule 15 of the Housing and Regeneration Act 2008, but no point arises in relation to that amendment. The relevant provision applicable in this case is section 160A. As a result of the Homelessness Act 2002, that replaces a similarly-worded provision, section 161(2), in the original version of the 1996 Act. Under section 160A(3), a person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is ineligible for an allocation of housing accommodation by a local housing authority, unless he or she falls into a class prescribed by regulations made by the Secretary of State. There are no relevant regulations in this case.
10. Section 160A, or at least its predecessor, provision section 161(2), was examined in R (Kimvono) v Tower Hamlets London Borough Council. In that case the applicant, who had arrived in the United Kingdom in 1991, and had applied for asylum. He had been granted exceptional leave to remain, along with his son, in 1999. In January 2000, following his 13-year-old daughter's arrival in the United Kingdom, he made a further application for assistance as a homeless person under what had become Part VIII of the Housing Act 1996. The local authority decided that because the applicant's daughter was subject to immigration control, they could not take her into account in considering the application. Accordingly, they decided that the applicant would be eligible for a two-bedroom, rather than a three-bedroom, property. Collins J held that what was then section 160(2), now section 160A(3), only prohibited an authority from allocating accommodation to an applicant who was subject to immigration control. The immigration status of an applicant's dependent — in this case the 13-year-old daughter — was irrelevant. Because the applicant had been granted exceptional leave to remain he, and all his dependents, were no longer subject to the prohibition in section 161(2). Collins J said that it was perfectly clear that the relevant provisions of Part VI, dealing with allocation, were concerned with a person who is to be, or may become, the tenant of the relevant accommodation. It was not, and could not reasonably be construed as, covering any dependent child:

"It would, in my judgement, be utterly absurd if the Council's approach was correct, because it would mean that a dependent child was to be disregarded for the purpose of providing the family, of which that child was a member, of accommodation" (at [20]).

Collins J went on to say that the statute required no such thing, that once the applicant qualified then he and any of his dependents were not caught by the provisions of section 161(2). That being the case, the approach of the local authority was flawed:

"22... Her immigration status is, in the circumstances of this case, irrelevant to the local authority's duties in that regard. Naturally, the Council could regard issuing return status as material if satisfied that the dependant's position in this country was as a matter of fact precarious. But that is not the position here."

11. Mr Gallivan, for the Council, submits that I should decline to follow Kimvono, on the basis that Collins J did not consider the earlier authority of Akinbolu v Hackney London Borough Council [1997] 29 HLR 259. The issue in Akinbolu was whether a local housing authority was capable in law of granting a tenancy to an overstayer, alternatively whether, if a grant were made, it would amount to a secure tenancy. The Court of Appeal found against the local authority on both issues. In doing so it expressly approved the principles set out by the Court of Appeal in R v Hillingdon London Borough Council, ex parte Streeting [1980] 1 WLR 1425 and R v Secretary of State for the Environment, ex parte Tower Hamlets London Borough Council [1993] QB 632. In Tower Hamlets Sir Thomas Bingham MR observed that the legal rationale underpinning the rule that housing authorities had no duty to house those unlawfully in the United Kingdom could not be derived from any process of construction of the Housing Act 1985 or the Immigration Act 1971. Rather, it derived from common sense, fortified by the provisions of the Immigration Rules and the observations of the Court of Appeal in Ex parte Streeting, Sir Thomas Bingham MR observed:

"It is common ground that housing authorities owe no duty to house those, homeless or not, priority need or not, who require leave to enter and illegally enter without any leave. I agree with this view. It would be an affront to common sense if those who steal into the country by unlawful subterfuge were then to be housed at public expense" (at 643 D).

12. A. Mr Gallivan submits that no sensible distinction can be drawn between the context of the Akinbolu case, the grant of a tenancy directly to an overstayer, and the grant of a tenancy to a person in a way which takes into account the housing needs of an overstayer. In his submission, it was as much an affront to common sense for an overstayer to obtain, indirectly, public housing, which they were unable to obtain directly. In his submission, the policy was reflected in Rule 6A of the Immigration Rules. Rule 6A of the Immigration Rules provides:

"For the purpose of these Rules, a person is not to be regarded as having (or potentially having) recourse to public funds merely because he is (or will be) reliant in whole or in part on public funds provided to his sponsor, unless, as a result of his presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds."

"Public funds" are defined earlier in the Immigration Rules as meaning "housing under Part VI or VII of the Housing Act 1996...". Mr Gallivan submits that the basis upon which the Court of Appeal in Akinbolu held that these principles did not apply in the actual decision in that case was because the Immigration Rules then under consideration specifically referred to Part III of the Housing Act 1985 (now Part VII of the Housing Act 1996), but not to Part II (now supplemented by Part VI of the Housing Act 1996) or Part IV of the Housing Act 1985. The Court of Appeal in Akinbolu said at page 267:

"It would have been simple enough to include in the Immigration Rules all accommodation provided in the public sector."

Mr Gallivan submits that now the Immigration Rules expressly provide that public funds mean housing provided under Part VI or VII of the Housing Act 1996.

13. B. The submission is a case has been decided per incuriam, which is never especially attractive, at least to a single judge, unless the case which is said to have escaped consideration is directly to point. In my view, on a strict legal analysis, there would be difficulties in concluding that Akinbolu applied directly to the circumstances of the case before Collins J in Kimvono. Akinbolu relied, in turn, on Tower Hamlets and Streeting and it may be that, given that those cases were concerned with allocation, that undermines the argument that Akinbolu was directly to point. In any event, for the present I am not prepared to depart from Collins J's decision in Kimvono.
14. C. That, however, leaves the issue of how Kimvono is to be interpreted. On one view, and certainly because of the way Collins J expressed himself, the case is distinguishable from the present. Kimvono concerned a dependent 13-year-old child, who was readily accepted to be part of the applicant's household. In the present situation, the application involves three of the claimant's remaining five adult children as well, of course, as her husband and grandchildren. The commentary in the authoritative Encyclopedia of Housing Law, edited by Andrew Arden QC and others, interprets Kimvono as meaning that section 160A(3) does not prevent allocation to an eligible person merely because a member of his household is not eligible. That seems to me, in terms of the statutory language, to be the correct interpretation. In any event, I agree with the submissions of Mr Fitzpatrick, that if the decision in Kimvono had been unacceptable as public policy, Parliament has had a number of occasions since 2000 to reverse its effect. There was ample opportunity at the time that section 160A was introduced by the Homelessness Act 2002. The issue could also have been addressed in schedule 15 of the Housing and Regeneration Act 2008. In neither case, nor in any of the immigration legislation since 2000, has Parliament reversed Kimvono. That being the case, I accept it as authoritative.

The claimant's case

15. The claimant contends that Islington Council misdirected themselves in law in the way they assessed what was proper accommodation for the claimant by ignoring the presence of the five adult children and by only allowing the family to bid for two-bedroom-type accommodation. In doing that, it is said, they failed to follow their own published allocation scheme. It is said that they therefore acted unlawfully in meeting their duty to give preference to those suffering overcrowding, as required by section 167(2). Finally, it is said that the Islington Council assessment that the adult children did not form part of the household was Wednesbury unreasonable.
16. The arguments centring on the immigration status of the claimant's children were, in the submissions of Mr Fitzpatrick, such that no statutory provision, certainly not section 160A itself, or generally in Part VI of the Act, prevented the inclusion of the claimant's adult children in being considered in the claimant's application. In his submission the approach of Kimvono should be followed. In terms of the allocation policy, and whether the adult children were part of the claimant's household, Mr Fitzpatrick referred to the defendant's housing allocation scheme. That provides, in paragraph 2.2, entitled "Splitting large households":

"There is a shortage of larger properties within the borough for households that need four-bedroom accommodation or larger. In these cases, with the household's agreement, consideration may be made to offering two separate properties."

Moreover, at paragraph 5.1, which sets out the points scheme, there is reference to "the needs of all individuals in the applicant's household [being] taken into account when points are awarded". In Mr Fitzpatrick's submission, there was no definition of "household" in either Part VI of the Act or in Islington's allocation scheme. He referred to social security decisions, including CIS/671/1992, as to who is part of a household. That decision, of a Social Security Commissioner, was that an element of domesticity needed to be taken into account in deciding whether a group was to be regarded as a household. The issue was to be determined, not week by week, but on the basis of the overall relationship between the parties. Consideration should be give to the evidence of family life within the accommodation, decided another Social Security Commissioner in decision CIS/671/1992. In Mr Fitzpatrick's submission, this was a household. The family had lived together since 1998, in other words, for a considerable period. The fact that the five adult children were now of majority age was itself no justification for them not being accepted as part of the household. The fact that they had chosen to remain as part of the household was neither here nor there, even though, as he put it at one point in his submissions, by their age it might be thought they would have flown the nest. There was nothing under Part VI, in his submission, which would justify a conclusion that they were not part of the household, and there was nothing in the allocations policy either. The word "household" has no special meaning in this context.

Is Islington's decision flawed?

17. My construction of section 160A(3) of the Housing Act 1996 is consistent with the decision of Collins J in Kimvono, that is, that a local authority is not prevented by the legislation from taking into account that the person to whom a tenancy is to be allocated has those subject to immigration control in his household. Parliament has had ample opportunity over the years to overturn that interpretation if they so desired. However, that does not mean that a local authority must necessarily take those persons into account in allocating housing. It will be recalled that in Kimvono itself, Tower Hamlets Council had decided that they were prevented from taking into account those in the applicant's family who were subject to immigration control. In the present case, Islington does not contend that its decision is required by section 160A. The Act confers a wide discretion on local authorities in allocating housing. Section 159(7) makes that clear. That is as it should be. Local authorities have the on-the-ground knowledge to make allocation decisions. They must, of course, act in accordance with their allocation policy. In this case, there is no challenge to the policy itself. The complaint is that Islington Council has failed to follow their published policy, in that they have not properly applied the concept of "household". In my view, the Council was entitled to interpret "household" by reference to its ordinary, everyday usage. It was up to them to decide whether these five adult children were members of the claimant's household. They decided that these adult children ought not to be taken into account as part of the household, given their ages and also given their precarious immigration status. It will be recalled that in Kimvono, Collins J had referred to precarious immigration status as a factor to be taken into account. In the present case, in my judgement, Islington Council were entitled to adopt the interpretation that they have. This is not, in my view, a case where they have departed from their policy, or failed to apply their policy, but rather they have adopted an interpretation which is a reasonable interpretation, given their knowledge, and given the circumstances of the applicant and her family. Moreover, it seems to me that Islington Council are also entitled to take into account the considerations which Sir Thomas Bingham MR mentioned in the Tower Hamlets case. That policy is encapsulated, as well, in the Immigration Rules. Islington, as was obvious in at least one of the letters to which I referred earlier, took into account the fact that, by granting accommodation in this case, there would be recourse to public funds by those subject to immigration control. In my view, it was entitled in its discretion to do that.
18. In the result, I refuse the application for judicial review and refuse the various orders applied for by the claimant.
19. Yes, Mr Fitzpatrick?
20. MR FITZPATRICK: My Lord, thank you for such a detailed judgment. I do apply for permission to appeal. It is really on the issue of whether or not the authority were entitled to, in the way they assessed "household", without anything in their allocations policy -- we say that your Lordship is wrong to have allowed them that latitude to take all those various matters into account without having anything in published policy. We say that is wrong, because the published policy is the document that persons go to and, in the absence of anything else, "household" cannot be given such a wide definition. So, on that footing, I apply for permission to appeal.
21. MR JUSTICE CRANSTON: I think it is a separate point from what Collins J decided in Kimvono but, nonetheless, I think that you need to go elsewhere.
22. MR FITZPATRICK: Of course.
23. MR GALLIVAN: Can I have my costs, please?
24. MR JUSTICE CRANSTON: Yes.
25. MR GALLIVAN: I am grateful, subject to the usual caveat and detailed public funding for my learned friend.
26. MR FITZPATRICK: Yes. My Lord, we are publicly funded.
27. MR JUSTICE CRANSTON: Yes. Thank you, and thank you for the helpful way in which the case was presented.