In this post Alice Richardson considers the second of two recent challenges to allocation schemes: R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin). Part 1 looked at R (Woolfe) v Islington LBC [2016] EWHC 1907 (Admin) and is available here.   In R (YA) v Hammersmith and Fulham LBC the Defendant’s allocation scheme provided that persons who had been guilty of unacceptable behaviour which made them unsuitable to be tenants were, save for in exceptional circumstances, disqualified from the housing register. The Claimant challenged the Defendant’s refusal to enter him onto their housing register due to his serious, but now spent, criminal record.   Housing Act 1996 The allocation of housing by local housing authorities is governed by Pt.6, Housing Act 1996. A local housing authority must have an allocation scheme for determining priority and must allocate housing accommodation in accordance with that scheme: s.166A(1). Each scheme must be framed so as to secure that persons falling within the categories in s.166A(3) are given a reasonable preference. Subject to s.166A(3) an authority may determine which classes of persons qualify for assistance under its scheme: s.160ZA(6)-(8).   Rehabilitation of Offenders Act 1974 Generally, by s.1 Rehabilitation of Offenders Act 1974, unless the sentence imposed in relation to a conviction is an excluded one, a conviction becomes “spent” and the convicted person becomes a “rehabilitated person” after the end of the applicable rehabilitation period set out in s.5 of the Act.   By s.4(1) of the Act, subject to certain exceptions, a person who has become a rehabilitated person shall be treated for all purposes in law as a person who has not committed, been charged with, prosecuted for, convicted of or sentenced for the offence or offences which were the subject of that conviction. Generally, no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions to prove that any such person has committed, been charged, prosecuted for, convicted of or sentenced for any offence which was the subject of a spent conviction.   By s.4(2), subject to certain provisions, where a question seeking information with respect to a person's previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions. By s.4(5)(b) for the purposes of s.4 and s.7 of the Act the conduct constituting the offence is defined as “ancillary to a conviction”.   s.7 sets out certain limitations on “rehabilitation” under the Act. By s.7(3): “If at any stage in any proceedings before a judicial authority… the authority is satisfied… that justice cannot be done in the case except by admitting or requiring evidence relating to a person's spent convictions or to circumstances ancillary thereto, that authority may admit … the evidence in question …”   Article 14 ECHR Article 14 provides that: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."   Differential treatment is discriminatory if it has no objective and reasonable justification or is disproportionate: Stec v United Kingdom (2006) 43 E.H.R.R. 47.   R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin) Hammersmith and Fulham’s allocation scheme disqualified certain classes of applicant from the register even though they fell within a reasonable preference category including, inter alia, “applicants who have been guilty of unacceptable behaviour which makes them unsuitable to be a tenant”.   Hammersmith and Fulham also operated a 'Care Leavers' Quota' which applied to 'looked after' children who leaving local authority care. Each financial year, a quota of social housing units was allocated for Care Leavers by Housing Options within its Housing Allocation Scheme. The Care Leaver had to meet the qualification criteria for social housing as set out in the Allocation Scheme. In exceptional circumstances the Director of Housing Options, Skills and Economic Development had the discretion to override the qualification criteria.   The Claimant was a Somali national who came to the UK as a refugee in around 2002. He was taken into care by the Defendant's social services team at the age of 11 after suffering a serious assault. Between the ages of 12 and 15 he had committed a number of criminal offences for which he was convicted. The offences included theft, assaulting a police officer, assault occasioning actual bodily harm, criminal damage, robbery, receiving stolen goods, possession of class A drugs, burglary and fraud offences.   After January 2012 the Claimant had not committed any offences and the evidence suggested that he had “turned his lifestyle around” over the next few years. He went to college and had long term plans to attend university. He had moved into semi-independent living aged 16 and was described by a social worker as an “ideal candidate for social housing”.   By a review decision dated 29th October 2015 Hammersmith & Fulham confirmed that the Claimant’s application to join the housing register had been rejected. Due to his significant offending history he had been 'guilty' of unacceptable behaviour and therefore considered unsuitable to be a tenant. It had been noted that he had not been found guilty of any offences since 2012 and it was accepted that the convictions had all become “spent” but nevertheless no discretion was awarded.   The Claimant was given permission for judicial review on following grounds:

The decision amounted to a breach of s.4(1) of the Rehabilitation of Offenders Act 1974.

The decision was irrational.   A renewed permission application was also made in respect of a further ground:

The decision was in breach of Article 14 of the European Convention on Human Rights on the basis that it gives rise to indirect discrimination against the Claimant as a "Care Leaver".   The Claimant argued that the wording of section 4(1) was plain and that he must be 'treated for all purposes in law as a person who has not committed… the offence'. The Defendant argued that it was entitled to take into account the behaviour of the Claimant that led to the convictions.   Mr. Peter Marquand, sitting as a Deputy Judge of the High Court, held firstly that what the Defendant had taken account of was a list of convictions which clearly fell within s.4(1). Inferences as to behavior had been made from those convictions and so the Judge then went on to consider whether s.4(1) includes the circumstances ancillary to a conviction, in particular 'the conduct constituting that offence or those offences'. He held that looking at s.4 as a whole and considering the purpose behind it was the circumstances ancillary to a conviction did fall within s.4(1) and therefore details of the Defendant’s conduct and behavior which formed the basis for the convictions fell within the prohibition.   The Defendant argued that it was able to rely on the limitation in s.7(3) but the Judge agreed with the Claimant that consideration of a housing application does not amount to 'proceedings before a judicial authority'.   Due to his decision on the first ground the Judge did not think it necessary or proportionate to go on to consider the irrationality ground given that the scheme itself was not being challenged. However the Claimant did challenge the policy as a whole under his third ground; breach of Art.14.   The Judge held that the process did fall within the ambit of Art.8 and therefore Art.14 applied, being a care leaver was an “other status” and there is a potential for indirect discrimination. However, the discrimination was justified. The Defendant’s evidence was that provision had been taken to prevent people with histories of anti-social behaviour being allocated very scarce social housing resources partly due to fairness but also due to community safety and well-being and a prudent use of limited public resources. Anti-social behaviour is a long-standing and difficult problem is to deal with which sometimes involves very serious and adverse consequences for other tenants, residents or staff.   Comment The decision on Art.14 is not entirely surprising. Firstly, the Judge acknowledged that whilst there is no absolute right to accommodation this did not prevent the allocation scheme from coming within the scope of Art.8. and the evidence demonstrated the link between the process, private life and the need for settled accommodation for vulnerable individuals.   As to the question of ‘other status’ the Judge, following, R (RJM) v the Secretary of State for Work and Pensions [2008] UKHL 63, held that the Care Leavers have had something ‘done to them’ in that they have been looked after by a local authority under a statutory regime and as a result of that they will have personal characteristics given their experiences of being in care. This may be of some wider significance given that there doesn’t seem to be any previous authority on the status of care leavers.   Considering the potential for discrimination the Judge followed Burnip v Birmingham CC [2013] PTSR 117 and held that there is no need for statistical evidence or for a comparator to establish discrimination under Article 14. In any event the evidence indicated that care leavers are likely to have a higher level of criminal convictions and behaviours and would therefore be disproportionately affected by the exclusion from the housing register.   Lastly, there was a wide margin of appreciation for any justification. The Defendant had to consider the rights and interests of the whole of its community and the exclusion form the register of those “who have been guilty of unacceptable behaviour which makes them unsuitable to be a tenant” was a proportionate measure striking a fair balance between the rights of the individual and that of the community.   The decision on the first ground may be of interest to other authorities who operate a similar scheme and to those who represent applicants falling within them (though they may be relatively few in number). Whilst the decision may seem fair for the Claimant in this case it does lead to the odd situation, as pointed out by Counsel for the Defendant, whereby anti-social behaviour that was less serious and did not result in a criminal conviction could be taken into account but behaviour that was more serious and resulted in a criminal conviction (which then became spent) could not.