Keywords: Housing, children, discretion

FACTS: A 22 year old pregnant woman had lived with her mother in rented accommodation in the council’s area for most of her life. She had been provided with temporary accommodation under homelessness provisions (Housing Act 1996 s.193(2)). This had come about because the local authority’s social services department had informed the claimant that it would have to apply for a care order for the baby if she was not rehoused away from her mother’s home (due to two of the mother’s children having been taken into care).

With regard to the claimant’s priority for long term social housing, under the council’s housing allocation scheme she had been duly awarded points for residence in the area and for the status of homelessness. However, she had not been awarded the points available under Islington’s “New Generation” policy which were open to children of tenants living in the local authority’s area with their parents continuously for three of the last five years. As a result, she did not have sufficient points to be able to bid on properties.

The council regarded the fact that she had moved out of her mother’s home into temporary accommodation arranged by its own Homelessness team as described above, meant that she was not now able to count as living with her parent.

HELD: The council’s housing allocation scheme did not breach the requirements of s.166A Housing Act 1996 nor the duty to have regard to the need to safeguard and promote the welfare of children (under s.11 Children Act 2004).

However, the council had misapplied its own “New Generation” policy by failing to award points to the claimant.

The court regarded the matter of the meaning of the policy as a matter of law for the judge to construe. The policy referred to the notion of living with one’s parent in the present tense, but the judge regarded the reference to ‘three out of the last five years’ as only capable of bearing the meaning that one did not have to be living with one’s parent at the time of the decision taken by the housing officer.

“In my view, the words “… continuously … for at least three out of the last five years …”, considered in conjunction with the overall policy objective, must be decisive. It is possible to read the words “be living” as meaning also “or have been living”. It is not possible to strike out the words “out of the last five years” as the argument requires. In my view, this construction is the more common sense and practical, and the less legalistic, of the rival interpretations contended for. To a lay person, three out of the last five years means exactly what it says.”

The case provides a good summary of the law on the legality of allocation policies which underwent extensive development in 2015/16.


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