HCLC Blog

The London Borough of Croydon agrees to revise its housing allocations scheme following judicial review claim: R (oao RQ) v London Borough of Croydon)

2/2/2022

 

The London Borough of Croydon has accepted that its allocations scheme unlawfully excluded several classes of eligible individuals and agreed to amend its policy.

 

Hackney Community Law Centre represented the single mother of three British children in a challenge of the London Borough of Croydon’s housing allocations scheme which unlawfully excluded individuals with Leave to Remain under Appendix FM.

 

Under s. 160ZA Housing Act 1996, “(1)A local housing authority in England shall not allocate housing accommodation—(a) to a person from abroad who is ineligible for an allocation of housing accommodation”. There is a power for the Secretary of State to make regulations specifying who is, and who is not, eligible for an allocation of housing accommodation. The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 as amended (the Eligibility Regulations), includes those individuals granted leave to remain under Appendix FM of the Immigration Rules. 

 

The case occurred in the context of the digitisation of the social welfare sector. A chain of errors led to the London Borough of Croydon excluding RQ and her children from their allocations scheme. First, the website publicising Acts of Parliaments and Statutory Instruments, Legislation.gov.uk, had not updated the Eligibility Regulations since 2006.

 

Second, it appeared that the London Borough of Croydon had based their 2019 Allocations Policy on this version.  The Policy purported to give an exhaustive list of persons who would be eligible for housing. However, this failed to include individuals with leave under Appendix FM, who were added into the Eligibility Regulations in 2016.

 

Third, the London Borough of Croydon was operating an online application form which automatically determined whether people were eligible. The form replicated the policy meaning that all the eligible classes of individuals added after 2006 were excluded. Applicants with these forms of leave to remain were told by automatic message that they had to contact the Home Office for “more information about your immigration status”. Those without legal advice would likely have taken these decisions at face value and accepted that they were not eligible for the allocation of housing.

 

Jeremy Ogilvie-Harris of Hackney Community Law Centre and Ben Chataway of Doughty Street Chambers brought a judicial review challenging the Allocations Policy and the operation of the online application form which were interacting to unlawful exclude eligible individuals from applying to join the housing register.

 

The claim was based on R(A) v Home Secretary [2021] 1 W.L.R. 3931.  In summary, the Policy and online application form were unlawful because they encouraged unlawful decision-making, both by deterring  eligible applicants from ever applying and by encouraging housing officers to make unlawful eligibility decisions.

 

After Calver J granted permission to our client, the London Borough of Croydon agreed to settle the claim, giving the following undertakings: that , within 60 days of the agreed order (i.e. by 4 April 2022)

 

• The London Borough of Croydon will amend its Allocations Scheme dated October 2019 to state that persons falling within Classes C and E to J of regulation 3 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 are eligible for an allocation of housing accommodation under Part 6;
• The London Borough of Croydon will amend its online form used to make applications under Part 6 to permit applications by persons falling within Classes C and E to J of regulation 3 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006.

This is a great result for potentially thousands of families who would have been disincentivised from applying or their applications refused by the online application form.

 

As local authorities and central government shift to “digital by default” in the social welfare sector, they must be diligent not to replicate legal errors in their algorithms and online forms.

 

From a broader perspective, this case shows the importance of judicial review, and the availability of legal aid, for upholding the rule of law and vindicating individual rights.

 

What does this mean for you or your clients?

 

The London Borough of Croydon’s Allocations Scheme and online form will be amended in 60 days’ time to include the full list of eligible applicants. If you or a client have previously applied to the Scheme but were unable to proceed past the online form, it is worth trying again as you or your client may, in law, be eligible for an allocation of housing.

 

If you know that you or a client are eligible but have been unable to apply, it is worth compiling evidence of the issues you are having and asking the London Borough of Croydon to backdate the effective date of bidding to the earlier date.

 

The following classes were previously excluded but will be included in the future:

1. Class C—a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and whose leave to enter or remain in the United Kingdom is not subject to any limitation or condition, other than a person—
   1. who has been given leave to enter or remain in the United Kingdom upon an undertaking given by his sponsor;
   2. who has been resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland for less than five years beginning on the date of entry or the date on which his sponsor gave the undertaking in respect of him, whichever date is the later; and
   3. whose sponsor or, where there is more than one sponsor, at least one of whose sponsors, is still alive;
2. Class E—a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and who has limited leave to enter the United Kingdom as a relevant Afghan citizen under paragraph 276BA1 of the Immigration Rules;
3. Class F — a person—
   1. who has limited leave to enter or remain in the United Kingdom on family or private life grounds under Article 8 of the Human Rights Convention that is granted under paragraph 276BE(1), paragraph 276DG or Appendix FM of the Immigration Rules; and
   2. who is not subject to a condition requiring the person to maintain and accommodate himself, and any person dependent upon him, without recourse to public funds;
4. Class G—a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and who has been transferred to the United Kingdom under section 67 of the Immigration Act 2016 and has limited leave to remain under paragraph 352ZH of the Immigration Rules;
5. Class H—a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and has Calais leave to remain under paragraph 352J of the Immigration Rules;
6. Class I — a person (P) who has limited leave to enter or remain in the United Kingdom by virtue of Appendix EU of the Immigration Rules in circumstances where—
   1. P is a family member of a relevant person of Northern Ireland (“RP”) in accordance with those rules; and
   2. P would have been considered eligible under regulation 4(2)(d) if RP were a person specified in regulation 4(2)(a) to (c); and
7. Class J — a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and who has limited leave to remain in the United Kingdom as a stateless person under paragraph 405 of the Immigration Rules.

If you are unsure whether you should be eligible for an allocation of housing, please obtain professional legal advice.