Trinity Housing Barrister Summary of R (On the application of MJ) v London Borough of Islington [2024]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent Judicial Review permission case of R (On the application of MJ) v London Borough of Islington [2024] EWHC 159 (Admin).

This was a claim for permission to apply for Judicial Review concerning an alleged failure by the Defendant, London Borough of Islington (‘Islington’), to take proactive steps to secure the rehousing of the Claimant and her family.

Facts

The Claimant resides in a three-bedroom maisonette with her 18-year-old daughter ‘A’ and two adult sons. A has additional needs such that she is entirely reliant on others for her care. The principal issue with the property was that it was above the ground floor, and did not have a walk-in shower or a suitably sized bathroom.

Islington had a housing allocation scheme based on a points system. The Claimant’s points gave her a realistic prospect of successfully bidding on an appropriate property. Islington also had a “Protocol for Meeting the Housing Needs of Non-Physically Disabled Children who are at Risk of Serious Injury or Fatality in their own homes” (‘the Protocol’). This enabled assessments of environmental risk which then fed into the housing allocation scheme.

As of May 2023, Islington accepted that the family should be regarded as being at “high risk” due to the risk this posed to A. The case was considered under the Protocol which resulted in the Claimant being given a choice of two suitable properties subject to them becoming available. This was at an advantage outside of the usual bidding scheme. A risk management action plan was also put in place pending the re-housing of the family.

The Claimant complained that she had for over ten years been raising concerns about her home not being adequate for A, that these problems were becoming more pronounced with A’s age and were now at a level that rendered Islington’s conduct unlawful. The failure to offer appropriate accommodation was said to amount to a breach of (i) Section 11(2) Children Act 1989 (ii) the scheme and/or Protocol and (iii) Article 8 of the Convention. The Claimant sought a declaration, damages for the breach of Article 8 and a mandatory order that a suitable property be provided to the Claimant.

The decision

It was held that the Claimant did not have an arguable case on the grounds of challenge:

• The Protocol did not on its face impose a time limit for two suitable properties to be offered. The accepted interpretation of “Actions need to be implemented as soon as possible and not later than 6 months” was not that two properties must be offered within six months but giving the Claimant priority by affording her sufficient points to bid on relevant properties in that timescale. Such an interpretation was supported by the fact that the housing allocation scheme was dependent on the stock available which will always be finite and in great demand [17].
• Section 11(2) CA 1989 did not create a duty to offer housing within a specified timescale under the Housing Act where one did not exist before. The obligation on Islington was to make arrangements to discharge its function which was done through its allocation scheme, Protocol and risk management plan [19].
• Article 8 was not considered to have been breached here as steps had been taken by Islington to protect A’s Article 8 rights. These included awarding sufficient points to bid on suitable properties, placing her in a superior category and a risk management plan was put in place [21].

It was considered the nub of the complaint was that Islington had not sourced a suitable property from the private sector. The problem with such a remedy was two-fold: local authorities generally cannot earmark properties but must allocate properties in accordance with Part VI HA 1996. Secondly, to give effect to the remedy sought, sufficient properties would need to be acquired to make two offers to the Claimant and anyone else of equal or greater need within the authority which would involve significant expenditure and the kind of decision-making around the allocation of resources in which the Court does not become involved [22].

Permission to apply Judicial Review was accordingly refused.