Allocation schemes - star rating or discrimination?


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The case of R (on the application of Fartun Osman) v Harrow LBC [2017] concerned an amendment to a local authority housing allocation scheme which reduced the priority of overcrowding in private rented accommodation.

The Claimant, who was unemployed and living with her husband and four children (under six) in a one bedroom privately rented flat, applied for judicial review of the decision which saw her being awarded Band C priority. Prior to the scheme being revised in December 2015, the Claimant was considered Band A on the basis of overcrowding. Changes to the scheme meant that private sector overcrowding was categorised in the same way as homeless applicants. Secure tenants who were overcrowded, however, remained in Band A.

The trigger for the change appeared to be a view that families were choosing to remain in overcrowded private accommodation in order to gain an offer of social housing. This option was not available to secure tenants.

The Court held that the test was whether, for the purposes of Article 14 ECHR, (i) those in overcrowded private accommodation could be compared with secure tenants and (ii) whether the distinction between them was proportionate and justified to meet a legitimate objective.

The Court held that the two issues were linked and that a rigid or formulaic approach should be avoided, each decision turning on its own facts. The Court took a view that applicants were not presenting themselves for assistance with overcrowding through the homelessness route. As a result, children were remaining in overcrowded homes for longer than necessary.

The Court held that the adjustment to the scheme would remove this problem and this constituted a legitimate aim. The adjustment to the scheme was driven by an overarching desire to best use the already stretched housing resource.

The case of R (on the application of XC) v Southwark LBC [2017] concerned a scheme which determined priority by taking into account additional factors.

The scheme involved a 'star rating' system. For example, one star is awarded for statutory reasonable preference, one for a working household and a further star for those providing a contribution to the community (by volunteering a minimum of ten hours per month for at least six months).

The Claimant was a single disabled woman who challenged the scheme by suggesting that it was contrary to ss19 and 29 of the Equality Act 2010. She stated that it discriminated indirectly against disabled persons who could neither work nor volunteer because of their disability, and more generally against women because of their caring responsibilities.

Garnham J dismissed her claim but agreed that the scheme did result in indirect discrimination against (i) persons with a disability and (ii) women. However, it was held that when applying proportionality as set out in Bank Mellat v HM Treasury (No 2) [2014] AC 700, the scheme had a legitimate aim; creating a sustainable and balanced community.  Moreover, this was the least intrusive measure to achieve that overarching objective.

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