Housing Allocation: Councils Must Follow Their Own Rules

As all applicants waiting for social housing will know, properties are in short supply and people have to wait a long time. Having clear, fair rules about how people are prioritised according to their medical and other needs is therefore of the utmost importance.

In a recent case, the High Court ruled that Birmingham City Council was misinterpreting the rules in its allocations scheme. It was giving priority for all adapted houses to families with dependent children, even if they didn’t need the adaptations, over a mother applying for adapted housing for her disabled adult daughter, even though she had higher priority, needed the adapted property and had been waiting longer.

The claim was brought by Community Law Partnership and Zia Nabi of Doughty Street Chambers.

David Lock QC, sitting as a High Court judge, roundly criticized the Council for its approach to the case, calling it “an object lesson in how a public body should not respond to public law proceedings”. In particular, he noted the Council’s failures to engage with the case properly and adduce proper evidence, and its self-contradictions as to what its interpretation of the policy actually was.

The issue in the case – Ms Nur’s ‘Catch-22’ situation

Ms Nur lives with her three adult daughters, one of whom suffers from cerebral palsy and has learning difficulties. She applied for adapted housing for her daughter’s medical needs in 2011. Birmingham City Council operates a system of priority ‘bands’ under its allocation scheme, according to who is assessed as being in the most need. Within the band, priority goes to the person who has been waiting longest. Following an assessment by an occupational therapist, Ms Nur was placed in the ‘high priority’ band under the allocations scheme in June 2019.

Ms Nur continually bid on properties which the Council made available on its online bidding system. As time went on, she was placing higher and higher on properties. Eventually, Ms Nur started finishing in 1st place. However, she then found that her bids had been ‘skipped’, either because the property was not adapted to suit her daughter’s needs, or because she did not have any dependent children, or because her family size was not eligible for the property.

When Ms Nur queried this, she was told that the properties she had bid on were houses, and that the Council gives preference to applicants with dependent children for houses over other applicants, even if those other applicants are in a higher priority band and have been waiting for longer. It relied on a passage from its allocation scheme that stated: “preference for houses with two or more bedrooms will be allocated to families with dependent children.” Based on this, the Council had essentially adopted a hard and fast rule that all families with dependent children must go before all families without in the queue for all houses, whether or not the property was an adapted one.

This put Ms Nur in an unenviable ‘Catch-22’ situation. The only properties she was allowed to bid for were adapted houses, but she could not be allocated an adapted house even if she placed first in the priority list, as these would always go to families with dependent children.

The claim

Ms Nur brought a claim for Judicial Review, arguing that this rule was discriminatory, irrational and unfair, and that the Council had completely misinterpreted its policy.

The Council failed to acknowledge Ms Nur’s claim or file a defence within the deadline. When it eventually did engage, it did not provide any explanation or evidence of how and why it adopted these rules, whether there were ever adapted properties that were not houses, or whether there were ever no applicants with dependent children in the bidding pool.

The judge agreed with Ms Nur that Birmingham had misinterpreted its own policy. A ‘preference’ is not a hard-and-fast rule which overrides all others. In contrast, the allocations scheme stated that “properties with adaptations will be allocated to persons with a physical or sensory disability”. This had to come first.

The Council tried to have the case thrown out by making an exception and offering Ms Nur a property. It then argued that the case had become ‘academic’. The judge had no time for this – a public law or discrimination challenge to a policy that affects many other applicants is not ‘academic’ just because a one-off exception has been made.

What is the significance of this?

As well as securing suitable housing for Ms Nur and her family, the case means that other people in Ms Nur’s position will not have the same incorrect rules applied.

It also serves as a stark reminder to local authorities and housing associations that:

• Their allocation schemes should be clear and transparent as to how priority will be determined;
• Their allocation schemes must be correctly applied according to their own terms, and not the interpretation of housing officers;
• They must be able to show, with evidence, how they came to arrive at the allocation scheme, including how they took into account their duties to advance equality of opportunity and reduce discrimination (the Public Sector Equality Duty);
• They must engage properly with judicial review proceedings.

If you are applying for housing allocation or a housing transfer and feel that you are being treated unfairly or discriminated against, the allocations scheme is usually the first thing to check. Contact our housing law experts on 0330 822 3451 and we will be able to advise whether you may have a judicial review or discrimination claim.