Behaviour of housing applicants
Christopher Baker analyses a recent Administrative Court decision on a council's practice of disqualifying applicants guilty of unacceptable behaviour.
Summary
The Administrative Court has held that provision in a local authority’s housing allocation scheme, disqualifying applicants who had been guilty of unacceptable behaviour which made them unsuitable to be tenants, was justified and accordingly did not amount to unlawful indirect discrimination against care leavers pursuant to ECHR art 14; but it had been contrary to s4(1) Rehabilitation of Offenders Act 1974 for the local authority to base a decision not to register the Claimant on conduct which constituted spent convictions.
Background
In R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin), Administrative Court, July 27, 2016 (Deputy High Court Judge Peter Marquand) the claimant, now aged 20, had been in the care of the local authority for many years. He had a criminal record as a juvenile, which included theft, assault, criminal damage, robbery, possession of class A drugs, burglary and fraud; but all his convictions had become spent for the purposes of the Rehabilitation of Offenders Act 1974. He was living in supported housing and his social worker recommended him to the local authority’s Care Leavers Housing Panel for consideration of a nomination for an allocation of social housing under arrangements involving a care leavers quota through the authority’s Housing Allocation Scheme.
In his report to the Panel, the social worker referred in general terms to the claimant having previously been involved in offending behaviour. The Panel carried out a vulnerability assessment and concluded that, although the case fell within its usual guidelines for private rented housing, it would nominate the claimant for an allocation of social housing.
The nomination was considered by a housing officer, pursuant to the authority’s Scheme under Pt 6 Housing Act 1996. She asked for and was provided by the social worker with details of the claimant’s offending history. By reason of that information, she decided that the applicant fell within provision in the Scheme disqualifying applicants who had been guilty of unacceptable behaviour which made them unsuitable to be tenants.
The scheme included provision for a senior officer to waive the disqualification in exceptional circumstances. The housing officer referred the matter to the Director of Housing Options, but he decided not to exercise the discretion in the claimant’s favour. The claimant was accordingly notified that, by reason of his significant offending history, he did not qualify to join the housing register.
The claimant sought an internal review of the decision, under arrangements within the Scheme. Following an initial review which confirmed the original decision, the claimant’s solicitors submitted that it was unlawful to take account of the offending history because the convictions were all spent. On a further review, the reviewing officer decided that, despite the convictions being spent, the underlying behaviour could nonetheless be considered; the Director again considered the exercise of the exceptional discretion but again declined to waive the disqualification; and accordingly the decision stood.
The claimant brought judicial review proceedings challenging the decision, pursuant to s4(1) of the 1974 Act and on the grounds of irrationality; and (among other matters) challenging the lawfulness of the Scheme on the grounds that the provision for disqualification amounted to unlawful discrimination against care leavers pursuant to ECHR art 14, in conjunction with art 8. Permission was granted on the papers for the challenges to the decision, but it was refused on the other grounds. At the full hearing, the claimant renewed the application for permission in respect of art 14 and the point was fully argued.
Decision
Allowing the claim in part, the Court held:
(1) Permission would be refused on the art 14 ground: although (a) the matter fell within the ambit of art 8, (b) a care leaver had a “status” for the purposes of art 14 and (c) statistical evidence showed the potential for the disqualification to affect care leavers disproportionately because of their oftentroubled backgrounds, there was a wide margin of judgment for the decisionmaker; there were legitimate aims in improving the environment for other residents and reducing the risk of the authority expending limited resources in dealing with unacceptable behaviour; it was rational to limit access to housing stock by people having such behaviour; the provision in the scheme was the least intrusive measure and it was proportionate in striking a fair balance between the interests of the individual and the interests of the community, given that the evidence showed it was unusual for care leavers to be denied access to the register, especially because of favourable exercise of the Director’s discretion.
(2) Although it might be possible to identify, in a person who had been convicted of a series of criminal offences, “bad” behaviours which did not form part of the conduct constituting the offences, in the present case there was no substantive evidence of such behaviour other than the history of convictions; s4(1) provided that once a conviction was spent the person “shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence”; the purpose of the provision would be undermined if information about the conduct which constituted the offence could be disclosed.
(3) The exception to s4(1) created by the statutory power in s7(3), to take account of evidence of spent convictions or circumstances including conduct constituting offences which were the subject of convictions, did not apply because the administrative process in the present case did not amount to “proceedings before a judicial authority” as defined; and in any event the requisite process under s7(3) had not been followed.
(4) In the circumstances, it was unnecessary to determine whether the decision may have been irrational.
Christopher Baker of Arden Chambers acted for Hammersmith and Fulham LBC. Christopher can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it.
