Domestic violence victim wins legal action over borough residency requirement

A London borough’s revised housing allocations policy was unlawful, a High Court judge has ruled following a judicial review challenge by a victim of domestic violence to the application of a five-year residency requirement.

The claimant in HA, R (On the Application Of) v London Borough of Ealing [2015] EWHC 2375 (Admin) was a mother of five children aged 17, 15, 10, 9 and 6 years. They were victims of domestic violence.

Together with the children, she left the London Borough of Hounslow to escape further domestic violence in February 2014.

On 9 June 2014 Ealing Council accepted a full housing duty to her under section 193 (within Part VII) of the Housing Act 1996 (unintentionally homeless) and offered her accommodation on 17 November 2014.

However, that accommodation was unsuitable for the size of the family (the council relatively recently withdrew its decision that the accommodation was suitable). The claimant awaits an offer of suitable accommodation.

On 4 December 2014 she applied online for accommodation in Ealing under Part VI of the Housing Act 1996 (as amended).

Her application to join Ealing's Housing Register was rejected in a 'pro forma' letter dated 8 December 2014.

This informed her – amongst other things – that following changes to the allocation scheme (introduced by the council after the Localism Act 2011), she did not appear to be eligible to join the Housing Register at that time.

The changes included that “households will not be able to register for housing in future unless they are able to demonstrate that they have been resident in the borough for five years”.

The claimant launched judicial review proceedings on a number of grounds. A witness statement from the chief executive of the Women’s Aid charity was provided in support.

The High Court judge hearing the claim, Mr Justice Foss, said that although the reason for the claimant’s ineligibility was unstated, it was clear that the operative fact was her not having been resident in the borough for five years.

The judge noted that no indication had been given as to whether consideration was given to the particular facts of the claimant and her family's case or as to whether the exceptionality provision within the council's policy might have applied to her or her children.

Mr Justice Foss said that, there being no exceptions for those in reasonable preference categories specified in section 166A(3) of the Housing Act 1996 in the defendant's policy and the claimant not having been resident in the defendant borough for the last five years, she had been automatically deemed not eligible for entry onto the Housing Register for social housing.

The High Court judge ruled that although a residency requirement was an entirely appropriate and encouraged provision in relation to admission onto a social housing list, it must not preclude the class of people who fulfil the 'reasonable preference' criteria.

“The defendant's policy did not provide for the giving of reasonable preference to prescribed categories of persons as required by section 166A(3) of the Act,” he said. In this respect the policy was unlawful.

The judge also held that:

• The residency criteria, by not permitting of exception of women fleeing domestic violence and in the absence of reasonable justification, was contrary to Article 14 of the European Convention on Human Rights (anti-discrimination).
• The council's policy amounted to a breach of section 29 of the Equality Act 2010 by being indirectly discriminatory.
• There was nothing to show that the council had made arrangements to ensure that it discharged its functions under section 11 of the Children Act 2004 having regard to the need to safeguard and promote the welfare of children either in terms of formulating the policy or, more particularly in applying it to the individual circumstances of the claimant and her children in her case. In this respect the policy was unlawful.
• Even if he was in error in relation to the lawfulness of the defendant council's policy, he was satisfied that there was a failure to apply the allocations policy in the claimant's case. The terms of the decision letter of 8 December 2014, taken together with the absence of any evidence on behalf of the defendant to the contrary, lead to the inescapable conclusion that no consideration was given to the claimant's circumstances that she did not fulfil the residence criteria. “There is no indication or evidence that consideration was given to whether her case was exceptional, the discretionary provision relied upon by the defendant. Accordingly, by failing to consider the applicability of the exceptionality provision, there was a failure to apply its own policy and for this discrete reason, the decision was unlawful.”

The High Court judge therefore ruled that Ealing’s policy was unlawful and that the council’s decision in the claimant’s case was unlawful and should be quashed.