Following a pair of recent decisions, Barbara Zeitler considers the roles that overcrowding and religious affiliation can play in the allocation of social housing.
Social housing – housing that is more affordable and provided under more secure tenancy conditions – is a scarce resource. Section 166A of the Housing Act 1996 requires every local authority in England to have a scheme for determining priorities and set out mechanisms and procedures to be followed when allocating housing.
Local councils have considerable flexibility in determining who qualifies for social housing in their area. Councils also discharge their functions by nominating applicants for social housing to housing associations with their own housing stock. To allocate social housing properties, councils use a points-based system based on need and place applicants in different bands of priority need.
Access to social housing continues to generate a considerable amount of case law. As 2020 draws to a close, this article considers two of this year’s decisions that grapple with the allocation of social housing. While factually and conceptually very different, the two decisions highlight the practical and legal difficulties faced by applicants for social housing.
The first case considers a local authority’s assessment of why a property became overcrowded and the priority to be given to the applicant as a result of the overcrowding. In the other, the religious affiliation of applicants was the determining factor for access to properties owned by a charity, thereby excluding others from being considered for housing.
R (on the application of Flores) v London Borough of Southwark
Flores ([2020] EWHC 1279 (Admin)) concerns a requirement in the London Borough of Southwark’s allocation scheme (which applied at the time of Favio Flores’s application) that an applicant would be given reduced priority if he had “deliberately worsened” his circumstances in order to obtain higher priority. By contrast, applicants who are statutorily overcrowded under Part X of the Housing Act 1985 and who have not caused the statutory overcrowding by a deliberate act will be placed in the highest band.
Flores came to the UK from Spain to look for work and was shortly thereafter joined by his wife and two children, who were younger than 10 years old. In 2014 the family rented a one-bedroom property in Southwark, which was all they could afford. When the family moved into the property, it would have been overcrowded under Southwark’s allocation policy, which provided that two bedrooms were needed for a family with two children under the age of 16.
The property, however, was not statutorily overcrowded under section 326 of the Housing Act 1985 until Flores’s elder child reached the age of 10 in 2016. In 2018, the family applied to Southwark for housing. In October 2019, Southwark decided on Flores’s banding: it took the view that Flores and his family were overcrowded voluntarily by having moved into a one-bedroom flat.
In his claim for judicial review, Flores contended that Southwark had not considered properly the circumstances in 2014 when he and his family moved into the one-bedroom flat, when they were unable to afford larger accommodation.
The Administrative Court held that the “deliberate act” referred to in the allocation scheme was not a culpable act, but a voluntary act, namely Flores deciding to enter a tenancy for a one-bedroom flat for a family of four. The decision by Flores to move into a property that was effectively unsuitable from the start was sufficient for the defendant to conclude that Flores had done a deliberate act, which prevented him from having band 1 priority.
It made no difference that Flores did not know about the council’s policy. The council, therefore, was entitled to distinguish between overcrowding caused by the natural increase of a family resulting from the arrival of a new child and, on the other hand, the growing up of an existing child.
It is questionable whether economic factors, such as those that hindered Flores, amount to a deliberate act, preventing him from qualifying for housing. An appeal against the decision is due to be heard in mid-December 2020.
R (on the application of Z) v Hackney London Borough Council
In Hackney ([2020] UKSC 40), the Supreme Court considered the provision of social housing by a charity to which a local authority has nomination rights, and the way in which the provision of social housing by that charity is subject to discrimination laws.
The Agudas Israel Housing Association is a charitable housing association with properties in a part of Hackney in east London that has a substantial Orthodox Jewish community. AIHA’s primary object is to provide social housing for the benefit of the Orthodox Jewish Haredi community. The charity makes available its social housing stock primarily to a particular group defined on the basis of religious adherence: it takes positive action to assist the housing needs of members of the Haredi community.
The London Borough of Hackney has nomination rights to properties owned by AIHA. Hackney nominates those on the housing list to AIHA who are not Orthodox Jews, but in practice, given the dearth of properties in the area, only members of the Orthodox Jewish community are allocated housing. AIHA’S properties represent 1% of the 47,000 social housing properties available in Hackney. Its properties tend to be sizeable to accommodate the greater need of the Orthodox Jewish community for larger properties.
The Equality Act 2010 prohibits discrimination in relation to a protected characteristic such as race and religion or belief. There are exemptions to this prohibition. A person is not prevented from taking positive action in a proportionate way to alleviate disadvantage (section 158 of the Act); nor is a charity prevented from restricting the provision of benefits to particular groups of persons under section 193(2).
Section 193(2)(a) allows a charity to restrict benefits to those with a protected characteristic if that restriction is a proportionate means to achieving a legitimate aim. Section 193(2)(b) allows charities to restrict benefits to those who share a protected characteristic if the restriction seeks to prevent or compensate for a disadvantage linked to that characteristic.
The first appellant, Z, a mother with four children, is not a member of the Orthodox Jewish community. She has priority need for housing due to the health of two of her children. Not belonging to the Orthodox Jewish community, she could not be allocated an AIHA property. Z challenged AIHA’s allocation policy, and by extension Hackney’s nomination arrangement with the charity, claiming direct discrimination on the grounds of race and religion.
Before the Supreme Court, Z was given permission to rely on a further claim on the Race Directive (Council Directive 2000/43/EC of 29 June 2000) that implements the principle of equal treatment regardless of racial or ethnic origin.
The Supreme Court upheld the dismissal of Z’s challenge by both the Divisional Court and the Court of Appeal. The court noted the unchallenged evidence regarding the housing needs of the Orthodox Jewish community and disadvantage suffered by that community in achieving its housing needs.
Highlighting the difficulties of challenging the proportionality assessment by a lower court at appellate level, the Supreme Court upheld the Court of Appeal’s conclusion that the proportionality assessment of the Divisional Court could only be set aside if the lower court had misdirected itself or reached a decision that was wrong.
The court held that the charity’s allocation policy amounted to positive action, not positive discrimination, and was lawful under sections 158 and 193(2)(a) of the 2010 Act. It was a legitimate aim for the charity to endeavour to minimise the disadvantages suffered by the Orthodox Jewish community in Hackney, and the measures taken to promote that aim, such as rules about who could apply for social housing provided by the charity, were proportionate.
If AIHA changed its allocation policy to include persons not belonging to the Orthodox Jewish community, that would “dilute the impact it could have on addressing the needs and disadvantages experienced by that community in connection with their faith”.
The court held that the charity was not in breach of the Race Directive because its allocation policy differentiated on grounds of religious observance, not race or ethnic origin. The court also upheld the Court of Appeal’s conclusion that section 193(2)(a) of the 2010 Act was not subject to an additional implied proportionality requirement, but that the proportionality requirement had in any event been satisfied.
This case highlights an instance where a charity was able to take positive action to help a particular disadvantaged group to gain social housing to the disadvantage of others and not fall foul of discrimination laws.
Final thoughts
Flores and Hackney relate, respectively, to what an applicant for social housing did and what an applicant is or is not. Whether Flores’s straitened financial circumstances justified the local authority’s decision to place him in a low priority band remains to be seen. Hackney underlines the fact-sensitive nature of a proportionality assessment, and one wonders what the outcome of the proportionality assessment might have been if AIHA’s properties comprised more than 1% of Hackney’s social housing stock.
Barbara Zeitler is a barrister at Lamb Chambers
