Allocations and private sector tenants

Mathew McDermott analyses a High Court case that considered Article 14 ECHR and treating private sector tenants differently from secure tenants for the purposes of a local authority’s Part VI housing allocation scheme.

The case of R (on the application of Osman) v LB of Harrow [2017] EWHC 274 (Admin) involved a challenge brought against the council’s amended housing allocation policy under Part VI of the Housing Act 1996 as amended (“Part VI”).

Background

Part VI obliges local authorities to have a policy for the purpose of allocating their housing stock. The Localism Act 2011 introduced a degree of flexibility in to the allocation scheme: local authorities were able to select, subject still to statutory control, factors that would be used in determining who would and who would not be added to the policy and, ultimately, be eligible for an allocation. This has led to two things: to authorities having differing policies from one another, as each one tries to tackle problems unique to their area, and to a number of challenges by way of judicial review against these new policies. R (on the application of Osman) v the London Borough of Harrow [2017] EWHC 274 (Admin) was one such challenge.

The facts

The Claimant, Ms Osman, had originally been given ‘Band A’ status on the Defendant’s allocations scheme. This was to reflect the fact that she was, according to the policy, living in “overcrowded” accommodation. Part VI says that a ‘reasonable preference’ must be given to such applicants.

The Defendant authority, however, became concerned that this ‘Band A status’ was encouraging applicants to remain in overcrowded accommodation in the hope that, in the not-too-distant future, they would be allocated a property subject to a secure tenancy. Rather than move to a larger property in the private sector and lose their Band A status, the authority felt that applicants were staying in unsatisfactory accommodation.

The Defendant consulted on proposals to change the policy, especially in light of what it felt was this perverse incentive and the fact that, almost by definition, it was affecting families with children.

This ultimately led to an amendment to the policy, which drew a distinction between those in overcrowded accommodation seeking an allocation but living in private sector accommodation, on the one hand, and those also seeking an allocation of a larger property but who already live in a property subject to a secure tenancy, on the other. In other words, current overcrowded secure tenants would retain their Band A status, whereas those living in overcrowded accommodation in the private rented sector would get a lower preference. The Defendant’s reasoning was that those in the private rented sector would find it easier to alleviate the overcrowding issue than somebody already living subject to a secure tenancy, especially in light of all the rights and privileges that come with the latter as opposed to the former - rights and privileges that would be lost if the secure tenancy was given up to move to the private rented sector.

The challenge

The Claimant was one such applicant whose banding was downgraded by virtue of her living in overcrowded - and private rented - accommodation. She said that this was, amongst other things, contrary to the non-discrimination article within Article 14 of the European Convention. This Article grants no rights itself, but prohibits discrimination against certain groups or those enjoying certain statuses in the way that the other substantive rights are enjoyed.

The Defendant accepted that the Claimant’s security of tenure (as an assured shorthold tenant) constituted a ‘status’ for the purposes of Article 14 and that the re-banding resulted in less favourable treatment. It also accepted, for the purposes of the hearing, that the Claimant’s Article 8 rights were engaged via the allocation scheme, meaning the Court had to answer two questions: were private sector and ‘public’ sector tenants in an analogous situation and, if they were, could the different treatment be justified as a proportionate means of achieving a legitimate aim?

The decision

The judge found that one could not separate the two questions, because the degree of similarity between the groups was linked to the reasons and justification for the differing treatment. As such, the focus was on whether or not the downgrading of the Claimant’s banding was a proportionate means of achieving a legitimate aim.

On this issue, the judge agreed with the Defendant and dismissed the application for judicial review. The ‘perverse incentive’ was rightly deemed as something that needed tackling: the Defendant wanted to remove the incentive keeping people in unacceptably overcrowded accommodation and the clear differences between the two tenures was key to the question of proportionality. In other words, there was enough of a difference between the two tenure groups to justify the differing treatment, and there had been no evidence adduced to suggest that it was a disproportionate means of achieving that evidently legitimate end.

This case is a useful reminder that often, when considering Article 14 non-discrimination cases, it can be artificial to consider the claim step-by-step e.g was there less favourable treatment? If there was, was that because of the Claimant’s status? If it was, is the Claimant in an analogous situation with the chosen comparator? If so, is the treatment a proportionate means of achieving a legitimate aim? Answering one often helps answering the other, as was the case here.

Mathew McDermott appeared on behalf of the successful Defendant. Mathew is a member of the 42 Bedford Row Property Team, and specialises in all aspects of Housing Law. He can be contacted on 020 7831 0222 or This email address is being protected from spambots. You need JavaScript enabled to view it..