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Filling the accountability gap in housing allocations decision making

Published online by Cambridge University Press:  02 January 2018

Emma Laurie
Emma Laurie*
Affiliation:
University of Southampton
*
*[email protected]
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Abstract

This paper examines how the courts can appropriately oversee the way in which local authorities formulate and implement their housing allocations policies. It locates this discussion within the wider topic of the courts' long-standing reluctance to become involved in adjudicating cases involving the allocation of resources more generally, as well as the potential for the courts to facilitate citizen participation in decision making, an aspiration that permeated the previous government's agenda and is apparently also a key influence for the current coalition government. It seeks to identify how the courts can protect both procedural and substantive fairness, in a manner that respects the courts' constitutional position and institutional competence.

Type
Research Article
Information
Legal Studies , Volume 31 , Issue 3 , September 2011 , pp. 442 - 466
Copyright
Copyright © Society of Legal Scholars 2011

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Footnotes

*

I would like to thank Professor Nick Wikeley, Dr Ed Bates and Nick Hopkins and the journal's anonymous referees for their helpful comments.

References

1. At March 2008 nearly 1.8 million applicants were listed on local authority housing registers in England: Department for Communities and Local Government statistics, Table 600, available at http://www.communities.gov.uk/documents/housing/xls/table600.xls.

2. Rutter, J and Latorre, M Social Housing Allocation and Immigrant Communities (London: Equality and Human Rights Commission, 2009)Google Scholar.

3. Housing Act 1996, Part VII.

4. Housing Act 1996, s 159(2)(a). Allocation includes nomination by the local authority to a tenancy of a Registered Social Landlord (RSL); Housing Act 1996, s 159(2)(c).

5. [2009] UKHL 14 [2009] HLR 31.

6. Birmingham City Council v Ali; Moran v Manchester City Council[2009] UKHL 36; [2009] HLR 41.

7. Ahmad, above n 5, at [46] per Lord Neuberger.

8. Shelley v London County Council[1949] AC 56 at 66.

9. Department for Communities and Local Government Fair and Flexible, Statutory Guidance (London: DCLG, December 2009)Google Scholar.

10. See Cowan, D and McDermont, M Regulating Social Housing, Governing Decline (Abingdon: Routledge Cavendish, 2006)Google Scholar 12 et seq.

11. See, for example, Home Office Policing in the 21st Century (July 2010) para 2.1: ‘We want to empower the public – increasing local accountability and giving the public a direct say on how their streets are policed’.

12. Big Society Speech, Monday 19 July 2010, available at http://www.number10.gov.uk/news/speeches-and-transcripts/2010/07/big-society-speech-53572.

13. Bailey, S and Elliott, M ‘Taking local government seriously: democracy, autonomy and the constitution’ (2009) 68(2) CLJ 436 CrossRefGoogle Scholar at 442.

14. Fair and Flexible, above n 9, para 13.

15. Laurie, E ‘the origins of central control over local authority housing allocations: principle or pragmatism?’ (2005) 26 Journal of Legal History 305 CrossRefGoogle Scholar.

16. Laurie, E ‘the Homelessness Act 2002 and housing allocations: all change or business as usual?’ (2004) 67 MLR 48 CrossRefGoogle Scholar at 49.

17. R v London Borough of Newham, ex p Watkins (1993) 26 HLR 434 at 450 per Sir Louis Blom-Cooper QC.

18. R v Wolverhampton MBC, ex p Watters (1997) 29 HLR 931 at 938 per Judge LJ.

19. Housing Act 1996, s 167(2). Under this section, authorities also have the power to provide ‘additional preference’ to people within the preference categories who have urgent housing needs.

20. Cowan and McDermont, above n 10, p 4.

21. A local connection may be because of past or current residence, employment, family association or other special circumstances: Housing Act 1996, s 167 (2A)(c) which imports the definition from Housing Act 1996, s 199.

22. DCLG Guidance for Local Authorities on How to Mainstream Community Cohesion into Other Services (DCLG, August 2009) s 4.

23. See, for example, DCLG Building Cohesive Communities: What Frontline Staff and Community Activists Need to Know (DCLG, October 2009).

24. Fair and Flexible, above n 9, para 74.

25. It set a target for all local authorities to have such a scheme by 2010: Office of the Deputy Prime Minister, How to Choose Choice: Lessons from the First Year of the ODPM's Pilot Scheme (London: ODPM, 2002)Google Scholar para 1.1.

26. Housing Act 1996, s 204.

27. Housing Act 1996, s 167(4A)(d).

28. Burton v UK (1996) 22 EHRR CD 135 and Chapman v UK (2001) 33 EHRR 18.

29. See particularly Art 8(2).

30. See, for example, Poplar Housing and Regeneration Community Association Ltd v Donoghue[2001] EWCA Civ 595 [2002] QB 48 at [69] per Lord Woolf CJ.

31. Kavanagh, A ‘the elusive divide between interpretation and legislation under the Human Rights Act 1998’ (2004) 24 OJLS 259 CrossRefGoogle Scholar at 273.

32. As to the former see R v London Borough of Newham, ex p Watkins (1994) 26 HLR 434, R v Wolverhampton MBC, ex p Watters (1997) 29 HLR 931 and R (Lin) v Barnet LBC[2006] EWHC 1041 [2006] HLR 44 and subsequently [2007] EWCA Civ 132 [2007] HLR 30. As to the latter see R (A) v Lambeth LBC; R (Lindsay) v Lambeth LBC[2002] EWCA Civ 1084 [2002] HLR 57.

33. Ahmad, above n 5, at [46].

34. D Cowan Social Housing Allocations: Commenting and Enhancing the Draft Allocations Impact Assessment (Housing Analysis and Surveys Expert Panel, December 2009) p 5.

35. For an early example see R v Canterbury City Council, ex p Gillespie (1987) 19 HLR 7. See also R (Joseph) v London Borough of Newham[2009] EWHC 1637 (Admin).

36. The identified need is not limited to the individual applicant but includes that of their household members.

37. R v Islington LBC, ex p Reilly and Mannix (1999) 31 HLR 651 at 656. It was not until the changes made by the Homelessness Act 2002 that existing tenants, wishing to transfer, were brought within the statutory allocations provisions; Homelessness Act 2002, s 13 substituted Housing Act 1996, s 159(5).

38. The development of the concept is explicitly acknowledged by Lloyd Jones J in R (Cali, Abdi and Hassan) v Waltham Forest LBC[2006] EWHC 302 (Admin) [2007] HLR 1 at [13].

39. R (Ahmad) v London Borough of Newham[2008] EWCA Civ 140 at [66].

40. Ahmad, above n 5, at [57]–[58].

41. Ibid, at [39].

42. Above n 37.

43. In R v London Borough of Tower Hamlets, ex p Khalique (1994) 26 HLR 517, the applicant was suspended from active consideration for housing because of his previous rent arrears. See also R v Wolverhampton MBC, ex p Watters (1997) 29 HLR 931.

44. Ibid, at 936. The ability to reduce an applicant's preference has subsequently been given statutory force by provisions that allow local authorities to have regard to an applicant's behaviour (or that of his or her family) when determining priority for housing: Housing Act 1996, ss 167(2A)(b) and (2B). Local authorities may also treat an applicant as ineligible for housing on the same basis; s 160A(7).

45. R (A) v Lambeth LBC; R (Lindsay) v Lambeth LBC[2002] EWCA Civ 1084 [2002] HLR 57.

46. Ibid, at [15] per Collins J.

47. Ibid, at [16].

48. Ahmad, above n 5, at [31] per Lord Neuberger.

49. Ibid, at [36] per Lord Neuberger.

50. Ibid, at [18] per Baroness Hale.

51. Ibid, at [21] per Baroness Hale.

52. Above n 6.

53. Housing Act 1996, s 175(3).

54. To which Lord Neuberger had contributed: Aweys/Ali, above n 6, at [7].

55. Ibid, at [62].

56. Ibid, at [63].

57. Ibid.

58. Ahmad, above n 5, at [46].

59. See, for example, Lord Hope's frequently quoted opinion in R v Director of Public Prosecutions, ex p Kebilene[2000] 2 AC 325, 381 and, writing extra-judicially, Lord Steyn ‘Deference: a tangled story’ (2005) PL 346. See, also Edwards, Ra ‘Judicial deference under the Human Rights Act’ (2002) 65 MLR 859 CrossRefGoogle Scholar; Allan, Trs ‘Human rights and judicial review: a critique of “due deference”’ (2006) 65 CLJ 671 CrossRefGoogle Scholar; Hickman, T ‘the substance and structure of proportionality’ 2008 PL 694 Google Scholar.

60. Jowell, J ‘of vires and vacuums: the constitutional context of judicial review’ (1999) PL 448 Google Scholar and Jowell, J ‘Judicial deference: servility, civility or institutional capacity’ (2003) PL 592 Google Scholar.

61. [2007] UKHL 11: [2007] 2 WLR 581.

62. M Amos ‘Separating human rights adjudication from judicial review –Huang v Secretary of State for the Home Department and Kashmiri v Secretary of State for the Home Department’ (2007) EHRLR 679 at 689.

63. Huang, above n 61, at [17].

64. Ahmad, above n 5, at [60].

65. King, Ja ‘the pervasiveness of polycentricity’ (2008) PL 101 Google Scholar at 101.

66. Alder, J ‘Incommensurable values and judicial review: the case of local government’ (2001) PL 717 Google Scholar at 717.

67. Ahmad, above n 5, at [51] per Lord Neuberger.

68. Fair and Flexible, above n 9, at para 65.

69. Alder, above n 66, p 719.

70. Fair and Flexible, above n 9.

71. DCLG, Communities in Control: Real People, Real Power (London: DCLG, July 2008)Google Scholar Cm 7427, para 1.20.

72. Fair and Flexible, above n 9, at para 32.

73. Office of the Deputy Prime Minister Promoting Effective Citizenship and Community Empowerment (London: ODPM, February 2006) p 34 Google Scholar.

74. Cowan, D and Marsh, A ‘Ahmad: some reflections’ (2009) Journal of Housing Law 73 Google Scholar at 75.

75. Ball, J ‘Insiders and outsiders in French social housing allocation: how conflicting rights exclude disadvantage people’ (2009) 9(3) European Journal of Housing Policy 313 CrossRefGoogle Scholar.

76. DCLG Creating Strong, Safe and Prosperous Communities (London: DCLG, July 2008)Google Scholar para 2.23.

77. Fair and Flexible, above n 9, at para 45.

78. Joseph Rowntree Foundation Citizen Involvement in Local Government (York: JRF, June 2009) p 6 Google Scholar.

79. Ibid, p 16.

80. See Fredman, S ‘New horizons: incorporating socio-economic rights in a British bill of rights’ (2010) PL 297 Google Scholar, drawing on the work of J Habermas Between Facts and Norms (1997). See also Harvey, C ‘Governing after the rights revolution’ (2000) JLS 61 CrossRefGoogle Scholar and H Kennedy ‘Deliberative democracy gets my vote’Guardian 9 January 2010.

81. As Cowan has noted, there would be potentially significant costs associated with the level of consultation that the Code envisages: Cowan, above n 34, at 11.

82. Kavanagh, A Constitutional Review under the UK Human Rights Act (Cambridge: CUP, 2009)Google Scholar.

83. Ibid, at 341.

84. Ibid, at 345–348.

85. Ibid, at 365.

86. Housing Act 1996, ss 167(4A) and 160A. The review is ‘internal’ in the sense that it is conducted by the original deciding authority. The recent Supreme Court decision in Ali v Birmingham City Council[2010] UKSC 8; [2010] 2 AC 39 has given fresh support to the compatibility with Art 6 ECHR of internal review procedures when combined with the possibility of a subsequent appeal on a point of law or, by logical extension, judicial review; see Lord Hope at [50]–[56].

87. As Cowan notes, the anecdotal evidence about the extent to which this right of review is invoked suggests only limited use (Cowan, above n 34, at 15), leading him to describe it as the ‘forgotten sibling’ of the homelessness right of review: Cowan, D ‘Nominations: a practical issue’ (2008) 12(2) Journal of Housing Law 26 Google Scholar.

88. Housing Act 1996, s 167(1).

89. Ibid, s 167(8).

90. See R (Lin) v Barnet London Borough Council[2007] EWCA Civ 132 [2007] HLR 30 at [48] per Dyson LJ and R (Faarah) v London Borough of Southwark[2008] EWCA Civ 807 at [41] per Toulson LJ.

91. Compare R (on the application of Alam) v London Borough of Tower Hamlets[2009] EWHC 44 (Admin) at [56] with R (Van Boolen) v London Borough of Barking and Dagenham[2009] EWHC 2196 (Admin).

92. Section 138(1) of the 2007 Act inserted new s 3A into the Local Government Act 1999.

93. Local authorities also have the power ‘to do anything which they consider is likely to achieve’ the promotion or improvement of the economic, social and/or environmental well-being of their area; Local Government Act 2000, s 2.

94. Housing Act 1996, s 167(7); for example RSLs with whom the authority has nomination agreements. See also the requirement for tenant involvement contained within the new regulatory framework for social housing: Tenant Services Authority, The Regulatory Framework for Social Housing in England from April 2010 (March 2010) p 20.

95. The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 SI 2005/2966, reg 2(2) and 2(3)(a) respectively.

96. Boyejo v Barnet LBC[2009] EWHC 3261 (Admin) at [67].

97. [1985] 84 LGR 168.

98. [2001] QB 213.

99. Howarth, W ‘Aspirations and realities under the Water Framework Directive: proceduralisation, participation and practicalities’ (2009) Journal of Environmental Law 391 CrossRefGoogle Scholar.

100. Ibid, at 398.

101. Ibid, at 399.

102. The United Nations Regional Organisation for Europe (UNECE) Convention on Access to Environmental Information, Public Participation in Decision Making and Access to Justice in Environmental Matters. See Morrow, K ‘on winning the battle but losing the war...’ (2008) Environmental Law Review 65 CrossRefGoogle Scholar at 69.

103. R (Greenpeace Ltd) v Secretary of State for Trade and Industry[2007] EWHC 311 (Admin); [2007] Env. LR 29 QBD (Admin).

104. Ibid, at [63].

105. Devon CC v Secretary of State for Communities and Local Government[2010] EWHC 1456 (Admin) at [70].

106. Ibid, at [105].

107. The duty was originally contained in the Health and Social Care Act 2001, s 11 and is now contained in the National Health Service Act 2006, s 242.

108. Section 157. See Harris, N ‘Playing catch-up in the schoolyard?’ (2009) International Journal of Law, Policy and the Family 331 CrossRefGoogle Scholar at 347.

109. Ibid, at 346.

110. Equality Act 2010, s 149.

111. Ibid, s 1(1). This provision has not yet been brought into force and the Home Secretary, Theresa May, announced on 17 November 2010 that this new duty will be ‘scrapped’; Government Equalities Office ‘Political correctness won't lead to equality’ (11 January 2011), available at http://www.equalities.gov.uk/media/press_releases.

112. Explanatory Notes to the Act, para 23.

113. Hansard HC Deb, Public Bill Committee, col 158, 11 June 2009, Vera Baird MP, Solicitor-General.

114. Hansard HL Deb, vol 715, col 1416, 15 December 2009.

115. Fredman, S ‘Positive duties and socio-economic disadvantage: bringing disadvantage onto the equality agenda’ (2010) EHRLR 290 Google Scholar at 304.

116. See Lord Lester, Hansard HL Deb, vol 715, col 1416, 15 December 2009.

117. Equality and Human Rights Commission, Equality Bill, Parliamentary Briefing, House of Commons Second Reading (May 2009) p 6. The allocations guidance recommends local authorities carry out an equality impact assessment and to monitor lettings outcomes; Fair and Flexible, above n 9, paras 21–22.

118. Burton v UK (1996) 22 EHRR CD 135 and Chapman v UK (2001) 33 EHRR 18. cf The European Social Charter (revised) Strasbourg, 3V 1996, para 31 and the International Covenant on Economic, Social and Cultural Rights, Art 11(1) both of which enshrine the right to housing.

119. See below n 135, and accompanying text.

120. Marzari v Italy (2000) 30 EHRR CD218 and Moldovan v Romania (2005) 44 EHRR 16.

121. Under Part VII of the Housing Act 1996.

122. Ahmad, above n 5, at [13].

123. Amos, M Human Rights Law (Oxford: Hart, 2006) p 468 Google Scholar.

124. (2005) 41 EHRR SE18.

125. Ibid, at [50].

126. Stec, above n 124, at [51].

127. Amos, above n 123, p 451; Ghaidan v Godin-Mendoza[2004] UKHL 30 [2004] 2 AC 557 at [10] per Lord Nicholls.

128. R (Carson) v Secretary of State for Work and Pensions; R (Reynolds) v Same[2005] UKHL 37 [2006] 1 AC 173 at [57]–[58] per Lord Walker. The more sensitive grounds include race, gender, illegitimacy, religion, nationality and sexual orientation.

129. Fredman, above n 80, at 302–303.

130. Amos, above n 123, p 468.

131. Rowland v Environment Agency[2003] EWCA Civ 1885.

132. Bamforth, N ‘Courts in a multi-layered constitution’ in Bamforth, N and Leyland, P (eds) Public Law in a Multi-Layered Constitution (Oxford: Hart, 2003) p 296 Google Scholar.

133. Poole, T ‘the reformation of English administrative law’ (2009) CLJ 142 CrossRefGoogle Scholar at 146.

134. S Bright ‘Article 8 again in the House of Lords: Kay v Lambeth LBC; Leeds CC v Price’[2006] Conv 294.

135. Harrow LBC v Quazi[2003] UKHL 43; [2004] 1 AC 983; Kay v Lambeth London Borough Council[2006] UKHL 10; [2006] 2 AC 465. The House of Lords in Doherty v Birmingham City Council[2008] UKHL 57; [2009] 1 AC 367 has cast doubt on the correctness of the ECtHR decision in McCann v UK (19009/04) [2008] Fam Law 729 which appeared to suggest (at [50]) that a tenant should in every instance be able to challenge the proportionality of a decision to repossess their home (see Lord Hope at [20] and Lord Scott at [82]).

136. Kay v Lambeth London Borough Council above n 135 at [35]–[38] per Lord Bingham and at [56] per Lord Nicholls.

137. Despite the Supreme Court's recent concession in Manchester City Council v Pinnock[2010] UKSC 45; [2010] 3 WLR 1441, it will only be rarely that the test of proportionality is not satisfied; see [52] per Lord Neuberger MR delivering the opinion of the court.

138. Laurie, E ‘Judicial responses to bright line rules in social security: in search of principle’ (2009) 72(3) MLR 384 CrossRefGoogle Scholar.

139. Poole, above n 133, at 144.

140. Bamforth, above n 132, p 298.

141. de Burca, G ‘Proportionality and Wednesbury unreasonableness: the influence of European legal concepts on UK law’ in Adenas, M (ed) English Public Law and the Common Law of Europe (London: Key Haven, 1998) pp 54–55 Google Scholar.

142. M Taggart ‘Reinventing administrative law’ in Bamforth and Leyland (eds), above n 132, p 329. Writing in relation to the enforcement of positive human rights duties, see Fredman, S Human Rights Transformed: Positive Rights and Positive Dutie (Oxford: OUP, 2008) p 103 CrossRefGoogle Scholar.

143. R v Secretary of State, ex p Daly[2001] UKHL 26 at [27].

144. Laurie, above n 138, at 407 et seq.

145. Edwards, Ra ‘Judicial deference under the Human Rights Act’ (2002) 65 MLR 859 CrossRefGoogle Scholar at 882. At a broader level see Allan, Trs ‘Human rights and judicial review: a critique of “due deference”’ (2006) 65 CLJ 671 CrossRefGoogle Scholar at 672.

146. Hickman, n 59 above, at 707–708.

147. cf, Grant Shapps MP (then Shadow Housing Minister) who asserted that local authorities ‘will have their hands tied’ by the Human Rights Act if they attempt to prioritise local people in their allocations systems; R Prince ‘Councils given permission to push immigrants down housing queues’Daily Telegraph 4 December 2009.

148. Equally, the recent Court of Appeal decision in Birmingham City Council v Qasim and others[2009] EWCA Civ 1080 at [21] per Lord Neuberger, draws a distinction between the allocation process and the grant of a tenancy, and denies that selecting an applicant for housing would give rise to any legally enforceable right to be granted a tenancy.

149. Ministry of Justice Rights and Responsibilities: Developing our Constitutional Framework (London: MoJ, March 2009)Google Scholar Cm 7577, para 4.27.

150. Ahmad, above n 5, at [55] per Lord Neuberger.

151. Fredman, S ‘from deference to democracy: the role of equality under the Human Rights Act 1998’ (2006) 122 LQR 53 Google Scholar at 76. See also King, Ja ‘Institutional approaches to judicial restraint’ (2008) 28 OJLS 409 CrossRefGoogle Scholar at 428.

152. Poole, above n 133.

153. Mashaw , Jl ‘between facts and norms: agency statutory interpretation as an autonomous enterprise’ (2005) 55 University of Toronto LJ 497 CrossRefGoogle Scholar.

154. [2007] UKHL 19; [2007] 1 WLR 1420.

155. Poole, above n 133, at 159–160.

156. See Tribe, Lh ‘the puzzling persistence of process-based constitutional theories’ (1980) 89 Yale LJ 1063 CrossRefGoogle Scholar.

157. In any case, the most recent decision of the ECtHR with respect to housing repossession may suggest a narrowing in substantive terms of the distinction between proportionality and traditional judicial review: Kay v UK Application no 37341/06 21 September 2010 at [73].

158. Poole, T ‘Legitimacy, rights and judicial review’ (2005) OJLS 697 CrossRefGoogle Scholar at 719–720.

159. Ibid, at 713.