Ukrainian family successfully challenges Hounslow’s handling of housing allocation application

Background

The Claimant is a Ukrainian national. Following the outbreak of war in Ukraine, the Claimant came to the United Kingdom with her husband (P) to live with her daughter (I). The Claimant’s daughter had been living in the UK for some time and already had a live application under Hounslow’s housing allocation scheme, where she was in Band 2 (the second highest priority band). She lived with her two children prior to her mother and stepfather’s arrival.

Neither the Claimant, nor her husband, speak or understand any English. P had just been diagnosed with pancreatic cancer, had undergone surgery and had started chemotherapy when war broke out. His treatment resumed in the UK but, sadly, his condition is terminal. His strong preference is for his care to be provided by his stepdaughter.

The Claimant herself has complex health needs, as does her daughter and the youngest of the children (i.e. the Claimant’s youngest granddaughter). After the arrival of the Claimant and P, the family of five live in a two-bedroom flat. The Claimant and P are obliged to sleep on the floor. The Claimant’s daughter acts as carer and interpreter for her parents.

The Claimant’s daughter therefore asked Hounslow to revisit her housing application in light of the changed circumstances with her parents now living in the household and having complex medical needs.

Hounslow’s Housing Allocation scheme

Hounslow’s allocation scheme is contained within its Housing Allocations Policy 2018. That document sets out who can be included on a housing register application. It does not count non-dependent children/parents as part of the same household, but it does have exceptions regarding those who have an exceptional need to live with the applicant to provide or receive care.

Hounslow’s housing allocation policy contains the following provisions (emphasis added):

3.3 Who can be included on a Housing Register application?
An applicant can include only members of their immediate family who normally live with them (or who would live with them if it were possible for them to do so) or other people who have an extenuating need to live with them.

3.3.1 Immediate family
Immediate family includes:

• The applicant’s spouse, civil partner or partner. By ‘partner’ we mean anyone who lives with the applicant as their partner or who would live with them as a couple if they were able to do so.
• Dependent children. This includes children aged under 21 who live with the applicant all the time, including those for which the applicant has legal guardianship and children that are adopted or fostered. The applicant is required to provide the council with official papers when requested, such as an order from a court, and other documents relating to any agreement that is currently in place regarding the residency of children.

Exception to the above rule

If an applicant has been accepted as statutorily homeless by the council, the household will be assessed as all members who are reasonably expected to reside with the applicant, included as part of the original homelessness application. Changes to the household composition will be assessed on a case-by-case basis, and a reduction in the number of household members will be taken into account in the size of property allocated.

3.3.2 People, who are not an immediate family member (see 3.3.1 above), who have an exceptional need to live with the applicant in order to provide or receive care or support.
People who have an exceptional need to live with an applicant means people who are currently living with the applicant but are not included in the definition of immediate family, but who have a real need to live as part of the household in order to give or to receive care or support. This may include the following people who have not applied for housing separately:

• A child (of the applicant or partner) aged 21 or over who has lived with the applicant for at least the last 5 years and cannot live independently because of a disability or care need;
• A carer, if someone in the household needs full-time care which cannot be provided with a care package and no one in their immediate family is able to provide this;
• An adult (or elderly) relative who has lived with the applicant for at least the last 5 years and needs to receive care that cannot be provided with a care package and can only be provided by the applicant.

Applicants must explain in their Housing Register application why they wish to include people who are not regarded by the council as immediate family. The council requires applicants to provide supporting documents to confirm this need such as:

• A social services care plan;
• An occupational therapy assessment;
• Proof of carers allowance being received;
• Other evidence the council thinks appropriate.

The Claimant therefore argued that they should have been treated as coming under the exception set out in para. 3.3.2, as she and her husband did not fall within the definition of ‘immediate family.’

Paragraph 6 of the policy contains provisions relating to exceptions and referrals to the Exceptional Needs Referral Panel. This is designed to cover situations of housing need which are recognised as not falling within a defined policy. The section of the policy on the Exceptional Needs Referral Panel is set out below (emphasis added):

6.2 Exceptional Needs Referral Panel
The Exceptional Needs Referral Panel (ENRP) considers urgent, complex housing cases which are outside the council’s Allocations Policy. It considers the following indicative types of cases:

• Households with multiple or complex support and rehousing needs, including high public profile cases, not covered by other Panels or by the Allocations Policy;
• Cases of violence where there is a serious threat to the life of the applicant or a member of their household if they continue to live in their current home (see Appendix B3, for example threats of domestic, hate or gang violence);
• Witness to a crime which has placed the witness at risk;
• Fostering or adoption facilitated by Hounslow’s Children’s Services where there is an extremely urgent need to secure permanent accommodation;
• Guardianship cases;
• Multi-Agency Public Protection Arrangement (MAPPA) cases;
• Modern slavery cases.

The ENRP meets once per month unless there is a particularly urgent case which needs immediate consideration. The Panel is chaired by the head of service for allocations. Other panel members include senior officers invited as required from other teams in the council depending on the type of cases being assessed. Cases for consideration are selected by the Lettings Co-ordinator (or equivalent) in consultation with the Chair of the panel. Cases for consideration by the panel are presented by team leaders (or equivalent) rather than officers.

Decisions of the ENRP to award Band 1 priority to an applicant are ratified by the Chief Housing Officer.

The ENRP may also decide to award Band 2 and Band 3 priorities to applicants based on exceptional circumstances at the discretion of the panel.

The decision under challenge

Hounslow made a decision on 11th January 2023 that they would not include the Claimant and her husband on the daughter’s housing application. Hounslow also refused to refer the Claimants’ case to its Exceptional Needs Referral Panel.

The Defendant’s email of 11th January 2023 confirmed their position as to how to deal with the Claimant’s situation:

• a.  The Defendant proposed that they would find a three-bed property suitable for five people, under Band 2 of the allocation scheme;
• b.  The parents could apply for their own accommodation, which (it was said) would likely be able to be provided in a far quicker time than it would to find a four-bed property; the Defendant indicated that they would try and find a place close to Irina’s home;
• c.  The parents could consider finding accommodation in the private sector, in the alternative;
• d.  The case was not referred to the Exceptional Needs Referral Panel because ‘the Council can offer alternative solutions’.

The Claimant brought judicial review proceedings challenging Hounslow’s failure to:

• a.  Include the Claimant and her husband on the same housing application as the Claimant’s daughter;
• b.  Refer the case to the Exceptional Needs Referral Panel.

The Claimant made it clear that they were happy to accept a three-bedroom property as opposed to a four-bed (or indeed as opposed to finding two separate suitable units). However it was important that the application was considered under Band 1 of the Housing Allocation Scheme as this would provide higher priority and therefore higher likelihood of being allocated a property.

The Claimant’s case

The Claimant had four grounds of challenge:

1. That Hounslow’s decision was inadequately reasoned and irrational.
2. That Hounslow had failed to follow their own policy, in particular by not referring the family’s case to the Exceptional Needs Referral Panel.
3. That Hounslow’s decision breached the Claimant’s rights under Article 8 of the European Convention on Human Rights.
4. That Hounslow had breached their ‘Tameside’ duty to make adequate inquiries, given that the family had repeatedly requested assessments under the Care Act 2014 from social services but no such assessment had been completed.

Hounslow defended the claim and took issue with whether the Claimant had sufficient standing within the meaning of section 31(3) of the Senior Courts Act 1981. It was argued that the Claimant’s daughter, as the person who had made the original application to the scheme (prior to her parents’ arrival) was the ‘best-placed challenger’.

Outcome

Following a half-day substantive hearing, the parties made further written representations on the question of the Claimant’s standing.

Delivering a short judgment, Recorder Ridge granted the Claimant’s claim for judicial review on ground 2. The Claimant was also found to have sufficient standing to bring the claim.

On the issue of standing, the court held that:
19. In this instance, the Claimant, her husband and Ms Nowosielska and her daughters are directly affected by the Defendant’s decisions. In some cases, if one or more claimants are directly affected or otherwise well placed to bring the claim that may mean that others who are not directly affected, or are less well-placed to bring the claim, will lack standing. That is not the case here, all of the family are directly affected.

20. I further accept Mr Ahluwalia’s point that in practical terms the identity of the Claimant (Ms Kukhtyak, Mr Khariv or Ms Nowosielska) would have made little difference to the grounds of challenge, the evidence and the issues to be determined. In addition, there is no authority for the proposition that, in circumstances where a number of persons are directly affected, there is only one person deemed to have standing to bring a claim. Therefore, I am satisfied that the purposes of the judicial review are equally well-served by Ms Kukhtyak being the Claimant.

In determining that it was unlawful not to have referred the Claimant’s case to the Exceptional Needs Referral Panel, the court held that:
42. The relevant policy provides that ‘urgent, complex housing cases which are outside the allocations policy’ are considered by the Panel. Having concluded that the case was outside the allocations policy, the Defendant should have asked was it an urgent and complex case. At the point in time that the decision was made, the Defendant had a great deal of information about the family’s needs. The Claimant’s instructing solicitor’s letter of 2 August 2022 contains a number of supporting documents evidencing the family’s various medical conditions and other matters. The matter was urgent by virtue of Mr Khariv’s diagnosis and it was arguably complex due to the family’s multiple health problems and the language and cultural needs.

43. The reasons given for declining to refer the matter to the ENR Panel are not consistent with a proper application of the allocations policy. The suggestion that there are alternative resolutions does not obviate the need to consider whether the case was urgent and complex and a referral should be made. The whole rationale of the exceptions policy is to cater for those situations which do not fit neatly within the previous allocation categories and to ensure that there is no injustice as a result of genuine applicants in true need falling through the cracks.

44. I conclude that the decision not to refer the matter to the ENR Panel was irrational for these reasons. The Defendant has not followed its own policy in relation to this aspect of the application and ground 2 therefore succeeds.

49. The decision not to refer the matter to the ENR Panel was unlawful due to irrationality. [The Defendant] contends that any remedy thereafter is discretionary and that because Claimant has the alternative remedy of making her own housing application and obtaining suitable accommodation. However, this ignores the fact that the family want to remain together as one household and have their collective needs considered together. Referral to the ENR Panel would enable that exercise to happen, without any guarantees as to the outcome. I therefore quash the Defendant’s decision not to refer to the panel and declare it as unlawful. I further order that the Defendant do reconsider the matter at the next available ENR Panel.

The decision of 11th January 2023 to refuse to refer the Claimant’s case to the Exceptional Needs Referral Panel was declared to be unlawful and quashed. Hounslow was ordered to refer the family’s case to the Exceptional Needs Referral Panel, and the Panel was ordered to consider the matter at the next available meeting.

The Claimant’s other three grounds of challenge were dismissed. Hounslow were refused permission to appeal by the Court of Appeal