Public Interest Law Centre

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19May 2022

Housing associations & JR: update

19th May 2022|Case Q&A, Domestic abuse, Housing, Judicial review|

In a case brought by PILC on behalf of a domestic abuse survivor, the High Court has ruled that decisions taken by housing associations around the consideration and refusal of management transfers are subject to judicial review.  

In our latest blog, Izzy Mulholland explains the significance of the ruling both in terms of legal precedent and the practical implications for survivors.

What’s going on?

In 2021, our client T, a survivor of domestic abuse, applied for a management transfer that would allow her to move to new accommodation where she and her children would be safe from the perpetrator of the abuse.

When Network Homes refused to grant T’s request, she brought a judicial review challenge against the housing association involved, Network Homes.

What did the court decide?

The key finding in the decision handed down by the High Court in the case known as TRX v Network Homes Limited [2022] is that decisions taken by housing associations relating to the consideration and refusal of management transfers are subject to judicial review.

The court also found that when a council or housing association makes a decision on a a management transfer application, the decision must not be generic. Rather, it must explain properly and adequately why its own policy criteria have not been satisfied to ensure the applicant understands why their application is being refused. This was the main ground on which T’s judicial review challenge succeeded.

What are the other implications of the judgment?

Other key implications of the case include:

  • Clarification around the definition of domestic abuse: Network Homes agreed that domestic abuse does not solely constitute physical abuse. This was in line with the definition of domestic abuse outlined in section 1 of Domestic Abuse Act 2021. As a consequence, the housing association must in future deem all forms of domestic abuse to come within the definition of the term when considering management transfer applications.
  • Requirement to make a homelessness application: Network Homes also confirmed that in T’s case there was no policy or requirement that she make herself homeless in order to access accommodation. Therefore, if Network Homes suggest that an applicant should make a homelessness application before a management transfer can be processed, caseworkers can point to this judgment as a basis for challenging that assertion.
  • Non-molestation orders: the judge in the case noted that Network Homes ‘will have well in mind’ points relating to the relevance of non-molestation orders and the history of the perpetrator. In future Network Homes should consider whether a non-molestation order is enough to protect a survivor (they cannot assume it is) and must instead consider the history and nature of the of the perpetrator’s conduct towards the applicant and their children.
  • Requirement to provide police or MARAC reports: the court clarified that Network Homes’ policy on management transfers does not require a police report or MARAC report be obtained in every case.

How can I find out more?

We have produced two detailed factsheets on the implications of the ruling, one for legal professionals and one for non-specialists supporting survivors of domestic abuse.

2Feb 2022

Q&A: Why housing associations must protect survivors

2nd February 2022|Case Q&A, Domestic abuse, Housing|

Image: Nicobobinus – licensed under CC BY-NC 2.0

We’re in the High Court today for a hearing on a judicial-review challenge our client is bringing against Network Homes.

The challenge relates to the housing association’s refusal to allow T, a domestic abuse survivor, to move to new accommodation where she and her children will be safe. The court will also consider in what circumstances judicial review challenges can be brought against housing associations.

In the latest in our series of Q&As on PILC legal cases, we outline the basis for the challenge and explore the wider issues raised by our client’s case.

What’s the issue?

T lives with her children in a flat that she rents from the housing association Network Homes. T’s ex-partner was physically and emotionally abusive both during and after their relationship and continues to present a risk to T and her children.

In early 2021 T applied for a management transfer that would allow her to move to new accommodation where she and her children would be safe. (A management transfer is when a local authority or housing association allows a tenant to transfer to new accommodation because of exceptional circumstances.)

In July Network Homes refused to grant T’s request.

Why is this a problem?

T has bravely taken steps to protect herself and her children from further abuse by engaging with domestic abuse charities, seeking civil protective orders and now by requesting a move. Network Homes’ refusal to grant her a management transfer means she and her children remain at risk from her ex-partner.

The housing association’s own policy states that the ‘exceptional circumstances’ that might lead to a request for a management transfer being granted include ‘[where] there is a severe or immediate risk to life or personal safety of a […] resident because of domestic violence, harassment, hate crime, safeguarding issues or [if they become the] victim of a serious crime.’

But they have said that the domestic abuse in T’s case does not meet their threshold, outlined in a sub-policy, of constituting a ‘threat to life and limb’. They have suggested she could instead seek a civil injunction against the perpetrator (which she has done) and report any new incidents of abuse to the police.

Are other people experiencing this same problem?

Yes. Councils and housing associations across London are imposing excessively high thresholds when it comes to survivors’ access to management transfers. This is despite the passage of the Domestic Abuse Act 2021, which provides a statutory definition of domestic abuse going beyond physical violence and was designed to make it easier for survivors to retain secure tenancies.

What are the legal grounds of our challenge?

We are arguing that Network Homes’s decision to refuse our client’s application for a management transfer on the basis that ‘she was unable to provide any evidence of threats to life or limb’ is unlawful because it takes an excessively restrictive view of domestic abuse, limiting it to acts of physical violence. We say that the housing association’s decision goes against its own published policy.

Network Homes have claimed that T ‘could approach the police or local authority to take more immediate and effective action’ as an alternative to the housing association moving her to new accommodation. But when T did approach her local authority, it confirmed that it supported her application for a management transfer. There was no suggestion that the council could or would accommodate her instead.

In our view, expecting survivors to approach their local authority places them in the invidious position of having to choose between their current stable accommodation and taking their chances with whatever (likely precarious) accommodation the council may provide.

Finally, Network Homes’ sub-policy requires domestic abuse cited in support of an application for a management transfer to have been reported to the police or a MARAC. We are arguing that this is both irrational and indirectly discriminatory.

It is irrational, in our view, because of the widely acknowledged fact that many survivors do not report abuse to the police or other public authorities. Therefore, the absence of a police or MARAC report does not indicate an absence of risk.

It is discriminatory, we say, because women are disproportionately likely to face domestic abuse and abuse is often not reported. Therefore, whilst it may be rational to require evidence from the police or other relevant authorities when considering applications for transfers not based on domestic abuse, the requirement places survivors of domestic abuse at an unfair disadvantage.

What are the wider issues raised by this challenge?

It is our view that housing associations fulfil a public function by providing social housing. They receive public funding in order to do so. As such, the safety of domestic abuse survivors should be paramount in the decisions they take.

Social housing providers should not be taking so narrow a view of domestic abuse as to grant the vital safety measure of a management transfer only to survivors who can prove they have experienced a ‘threat to life or limb’.

Domestic abuse survivors seek management transfers in order to remain safe whilst retaining security of tenure. The message Network Homes’ decision in this case sends to survivors is that they should either seek homelessness assistance from the local authority, move into the private sector, or remain in an unsafe home. All of these options are likely to result in reduced safety and security for survivors and their children.

Finally, this case touches upon ongoing legal controversy about whether, and when, judicial review challenges can be brought against housing associations. In hearing T’s case, the High Court will need to decide whether Network Homes is amenable to judicial review as a private registered provider of social housing.

From the decision in a case known as Weaver, the relevant question is whether the act under scrutiny is a private act. To determine that, it will be necessary to examine the nature of the act in the context of the body’s activities as a whole.

We are arguing that Network Homes’s decision in this case, and its policies relating to transfers, are amenable to judicial review. We do not believe that a decision concerning the transfer of a social housing tenancy can be a private act.


Please check back for updates about this case in the coming weeks.

1Dec 2021

Coming together to support survivors

1st December 2021|Domestic abuse, Housing|

© Jess Hurd/reportdigital.co.uk

Today sees the launch of the Domestic Abuse and Housing Forum (DAHF), created by PILC in response to the increasing obstacles domestic abuse survivors face when seeking housing support from local authorities.

In our latest blog, legal caseworker Isabella Mulholland explains what the forum will do and why it’s needed.

For the last three years, I’ve been working with domestic abuse survivors to support them to access safe housing. Before coming to PILC as a legal caseworker, I was a homelessness advocate worker in a winter night shelter. In both roles I’ve been struck by the multiple barriers survivors must overcome in order to assert their basic right to a safe and suitable home.

When survivors flee, they are at their most vulnerable. Yet when they seek help from local authorities at this crucial time, housing officers routinely provide inaccurate information about their rights and options. This deliberate (and often unlawful) gatekeeping is a systemic problem across local authorities and spans both homelessness and longer-term accommodation provision.

The Domestic Abuse Act 2021 contains a number of provisions that may help survivors (we wrote a briefing about the act earlier this year), but it will not address the deep-rooted culture of disbelief and gatekeeping that exists in local authorities. It will also do nothing to support those with no recourse to public funds (NRPF), who remain barred from access to local authority housing.

Moreover, lawyers are often unaware of the daily obstacles survivors face when trying to access housing support, while frontline workers often struggle to find legal advice or representation. The few lawyers working in the area are inundated with cases.

We hope the new Domestic Abuse and Housing Forum (DAHF) will help tackle some of these issues. Through the forum we want to create a network of frontline DV workers, homelessness advice workers, housing and public lawyers and campaigners who will support one another to tackle local authority gatekeeping in cases of domestic abuse.

DAHF will allow domestic abuse advocates and other frontliners to access second-tier legal advice on their cases and refer their clients for formal legal representation. It will also be a space where updates and resources can be shared.

Quarterly meetings will see DV workers, campaigners and lawyers come together to discuss, and hopefully tackle, the systemic barriers facing survivors who need support from their local authority.

DAHF will only be as strong as its membership. For the forum to be successful, it will need the right mix of frontline workers and campaigners supporting survivors and lawyers who can take on legal cases.

That’s why we’re asking our friends and partners to share information about DAHF as widely as possible, particularly among housing and public lawyers, and in advice and legal aid ‘deserts’. In many parts of the country there are no housing legal aid providers, and we hope the new forum will help frontliners in those areas access robust legal support.

Domestic abuse survivors should not have to face constant barriers when seeking a safe home. We hope that by pooling our resources, we will be better able to tackle the unjust practices that currently prevail across many local authorities.

We will be providing updates on the activities of the forum throughout 2022. To join DAHF or for more information, please email isabella.mulholland@pilc.org.uk

20Oct 2021

Q&A: Southwark overcrowding case

20th October 2021|Case Q&A, Housing|

At the beginning of October PILC issued a claim for permission to apply for judicial review of Southwark council’s housing allocations policy.

In the first in a new series of Q&As on PILC legal cases, we outline the basis for the challenge as well as exploring the wider implications of our client’s case.

What’s the issue?

Our client, Milton, lives with his wife, son and daughter in a privately rented studio apartment in Southwark. They are severely overcrowded and have endured extremely cramped housing conditions for almost five years.

The family applied to join Southwark’s housing register in April 2018. However, Southwark has refused to prioritise the family’s application for housing. The council claims that the family’s overcrowding is the result of a ‘deliberate act’.

Why is this a problem?

Priority on the housing register is determined by band. Southwark’s housing allocation policy awards the highest band (Band 1) to applicants who, like Milton and his family, are statutorily overcrowded.

This policy is in line with the council’s obligations under Part VI of the Housing Act 1996, which states that ‘reasonable preference’ must be given to people living in overcrowded housing.

However, there is an exception in Southwark’s housing allocation policy for people who have caused their overcrowding by a ‘deliberate act’, who are to be deprioritised.

Southwark accept that Milton and his family are statutorily overcrowded. But they claim this is the result of a ‘deliberate act’ on their part. In making this decision they have relied on an unpublished policy which appears to state that anyone who moves into accommodation that becomes overcrowded at the point at which they move in should be considered to have caused that overcrowding by a ‘deliberate act’.

However, Milton and his family had no choice but to move into their current accommodation.  As Milton explains with the help of his daughter Rebecca: ‘I had to move to this flat. When we looked at other places the agencies asked us for many months’ rent in advance. I couldn’t rent a bigger house because it was too expensive.’

How has overcrowding affected Milton and his family?

Being overcrowded is affecting the whole family’s mental health, as well as making it difficult for the children to study.

As Milton explains: ‘My children cannot study in this environment. During the pandemic they had to take classes online at the same time. They found it difficult to listen and concentrate in class because they were in the same room.’

‘We do not have any privacy, either: we have to go to the bathroom to change.’

What are the grounds for our legal challenge?

PILC is arguing that Milton and his family had no choice but to move into their current accommodation and therefore should not be penalised and deprioritised.

The legal grounds for our challenge are that:

  • It was irrational for Southwark to conclude that the family’s statutory overcrowding was caused by a ‘deliberate act’ (and, in particular, it was irrational to conclude that at the time Milton moved into the current accommodation he had the option of instead moving into suitable alternative accommodation which was not statutorily overcrowded)
  • Given that Milton was not able to afford alternative accommodation that was not statutorily overcrowded, his decision to move into statutorily overcrowded accommodation was not a “deliberate act” within the meaning of paragraph 6.2 of Southwark’s Housing Allocation Scheme
  • Southwark’s Housing Allocations Scheme does not explain the criteria used when considering whether an applicant has committed a ‘deliberate act’
  • Southwark’s treatment of Milton and his family breaches Article 14 taken with Article 8 of the European Convention on Human Rights

What wider issues does this challenge raise?

This is not the first time Southwark has blamed low-income families for their overcrowding. In December 2020, another family successfully challenged a ‘deliberate act’ decision.

Such cases raise broader issues relating to the chronic shortage of decent housing for low-income families in London, and the ‘social cleansing’ of migrant communities and communities of colour from central areas of the city.

It is now incredibly difficult for low-income Londoners to access secure, long term social housing.  Families find themselves stuck for years in temporary accommodation that is either too small for their needs or miles away from children’s schools or parent’s workplaces. In the private rented sector levels of overcrowding have almost doubled in the last ten years due to a combination of rent rises and benefit cuts.

As Sam Tippet, a PILC paralegal working on the case, explains: ‘This case is a clear example of how Southwark continues to penalise working-class families. Milton’s family have spent almost five years living in accommodation so severely overcrowded they are legally homeless. Like so many others, they are being punished for earning too little money to live safely in London.’

‘Southwark continues to have too little housing stock for social tenants. This is the result of the longstanding failure of local and national government to resource adequate accommodation for people on low incomes. Even if successful, our legal challenge will not resolve this problem. There is an urgent need both to increase the provision of social housing and introduce rent controls to ensure private tenants can afford a decent home.’

Councils are also using ‘gatekeeping’ tactics to deter low-income and homeless households from accessing support to which they are legally entitled. There is an established culture of disbelief in housing offices, with families routinely being accused of fraud or of causing their own housing problems. Such issues disproportionately affect migrant communities and communities of colour, who are more likely than other groups to be homeless and live in poor housing.

As Izzy Koksal from Housing Action Southwark and Lambeth (HASL)—the local housing campaign group that Milton is part of—puts it: ‘We are all too familiar with these cruel and insulting decisions from the council, which blame migrant families and families of colour for living in overcrowded housing. We have successfully overturned many of them with the help of PILC. Our members will continue to campaign for an end to the use of ‘deliberate act’ and this culture of blame and refusal.’

 

 

2Jun 2021

Fighting for social housing at the Elephant

2nd June 2021|Gentrification, Housing|

In our latest guest blog Jerry Flynn, a social-justice campaigner from South London, reflects on the campaign against the redevelopment of the Elephant and Castle Shopping Centre. Through the 35% Campaign Jerry has sought to hold Southwark Council accountable for promises the local authority has made about the provision of social housing in new developments. PILC acted for Jerry in a recent case against Southwark.

The Elephant and Castle in south London is a key regeneration site in Southwark, a borough in acute need of social housing.  For a third of households, socially rented housing represents the only hope of a decent, affordable home. According to a 2019 report Southwark has 12,000 families waiting for new council homes.  Southwark council has promised to build 11,000 new council homes—but only over a thirty-year period.

Given these circumstances Southwark’s priority for the regeneration of the Elephant should have been simple: to build more socially rented housing now. In fact, Southwark only requires a small proportion—17.5%—of new Elephant developments to be social-rent housing units. This is less than the 25% required in most of the rest of the borough.

These percentages are supposed to be minimum requirements. In reality, more social units are built only in exceptional cases.  Developers often claim that they cannot provide even this modest amount, citing weak financial viability—which simply means they will not be making as much profit as they think they deserve.

Such was the position taken by Delancey, a big property developer active in the borough and the owner of the much-derided (but also much-loved) Elephant & Castle Shopping Centre. In 2016 Delancey, in partnership with Dutch pension fund, APG and the Qatari Diar Real Estate Investment Company, proposed demolishing the shopping centre and building a mixed residential development consisting of nearly a thousand homes for rent and about as much retail floor space as was in the shopping centre (dispersed across two sites)  There would be 35% ‘affordable housing’, but only 33 ‘social rent equivalent’ homes – ‘viability’ would not allow for any more.

By omitting a provision for affordable retail units which would have allowed for modest reductions in market rents, Delancey also made it clear that there would be no room in the new Elephant & Castle for local traders, most of whom are from black and ethnic minority backgrounds, with many coming from London’s Latin American community.

Mounting the campaign

Our Up the Elephant campaign drew together all those who opposed Delancey’s proposals, which was just about everyone apart from Southwark council’s Labour leadership.  Campaign groups included: Southwark Defend Council Housing; Latin Elephant, a local charity that advocates for all local traders; the Elephant Traders Association; the Green Party; the 56a Infoshop, a radical social centre;  the anti- gentrification website Southwark Notes; and  Southwark Law Centre. The campaign also drew in local Labour and Lib Dem councillors, including those who had hitherto been supportive of the Elephant’s regeneration. It won notable support from Sian Berry, co-leader of the Green Party.

Students and trade-union support from the London College of Communication (LCC) was another important element in the campaign.  The LCC is gaining a new campus from the redevelopment after agreeing to give Delancey an extra piece of land in exchange. Yet the college was happy enough to mount an exhibition bewailing the iniquities of regeneration in other parts of the world—much to the disgust of many of its students and staff. Social media and communications work by activists and sympathetic artists was vital for campaign fundraising.

The Up the Elephant campaign orientated itself around the progress of Delancey’s planning application, but did not confine itself to simply generating objections: it protested, demonstrated and made sure that decision-makers were fully aware of the strength of feeling against Delancey’s proposals.  As a consequence, Delancey made a number of concessions for fear of not gaining planning permission.  They promised 116 social rented units and affordable retail units, built some relocation space for traders and funded relocation costs.  Southwark also found some funding to help traders and provided more relocation space on more generous leasing terms, courtesy of an intervention by London Mayor Sadiq Khan.  Delancey duly got its planning permission, but only just—by one vote and after three committee meetings.

The legal challenge

But Delancey’s proposal remained a bad one.  The shopping centre may have been shabby, but it housed one of the largest bingo halls in Britain, much used by older people from black and ethnic minority backgrounds. The bowling alley next door was equally popular with younger people. Along with Ward’s Corner in Seven Sisters, the shopping centre had over decades become one of two social hubs for Latin Americans living in London.  Its other independent traders came from all over the world and had built successful businesses for themselves and their families.  All of this would be lost.  And while the affordable housing ‘offer’ was improved, it still did not meet Southwark’s minimum policy requirements.

After discussions with Southwark Law Centre, who put us in touch with PILC and barrister Sarah Sackman of the Francis Taylor Building,  a decision was made to challenge the planning permission by judicial review. Sarah enlisted David Wolfe QC of Matrix Chambers.  All worked ‘pro-bono’ and an Aarhuus convention cost cap limited our adverse cost exposure.

The main ground of our challenge was that the planning committee had been misled about the status of the funding for the social housing.  Delancey claimed it had a grant from the Mayor for this, while also committing to building the social housing without a grant.  We argued that if a grant was indeed in place, this gave scope for the committee to have sought more socially rented housing,  The judge found, however, that while there was ambiguity in reports to the planning committee, the committee was nonetheless sufficiently aware of the full funding situation and had therefore not been misled.

The judge also found that the reports only amounted to guidance and allowed council officers discretion in how the committee’s decision was put into effect in practice.  This had consequences.  Delancey’s simple undertaking—to either build the social housing or to give Southwark Council or housing association the ‘the land and sum of money sufficient for construction and completion of the social rented units’ to do so itself—became a more complicated arrangement, with three options inserted into the legal agreement for the development, two of which involved Southwark meeting upfront costs.  The judge ruled, against our arguments, that this was a fair rendering of the committee’s decision.

We also challenged Southwark and Delancey’s assertion that ‘social rent equivalent’ (with 3-year assured shorthold tenancies) and ‘social rent’ (usually with lifetime tenancies) were effectively the same. Once more, the judge disagreed and could not see any significant difference.

The court decision and lessons learned

The outcome of our appeal against the High Court decision was unfortunately no better.  The Court of Appeal found that while the funding position was ‘overstated’, it was not misleading, and that, in any event, no additional socially rented housing could have been sought by the committee because the scheme was not sufficiently viable (a routine, but effective, argument  against social housing provision) .  It also confirmed the High Court decision that the ‘instrument of delegation’—a very short document—rather than the committee report constituted the ‘resolution to approve’.

We are disappointed by this outcome, naturally, but not disheartened.  The legal challenge was an important part of our campaign, but not the whole campaign. The practical improvements described above would not have been gained if we had not demonstrated a willingness to overturn the whole scheme. We have also shown that, with will and determination, a broad-based local campaign can win concessions, even if not outright victory.

Our campaign will continue, because the regeneration of the Elephant is far from finished.  In particular, we will continue to support the many traders who did not get relocated and who are now negotiating for new market space at the Elephant.

The court’s decision raises the serious question of who is going to pay for the socially rented housing that our campaign’s hard work has secured.  Whatever the courts may have decided, we are pretty sure that the planning committee did not have it in mind that Southwark should meet this cost. Such an interpretation of the development’s legal agreement is one that Delancey may now seek to take advantage of.

More generally, the court’s decision demonstrates that not everything a planning committee thinks it might be approving gets into the finalised agreement—at least not in the way that it should.  If a planning committee wants to be certain that any particular measure or amendment is adopted and effected in a given way, it must be specified in the ‘resolution to approve’. This is a lesson both for campaigners and councillors who sit on planning committees.

 

27Aug 2020

PILC report reveals human cost of NRPF

27th August 2020|Housing, Migrants' rights|

PILC, along with the Institute of Community Research and Development at the University of Wolverhampton, Project 17, ASIRT and Migrants’ Rights Network, has published a report into the support provided by English local authorities to people with no recourse to public funds (NRPF) during the Covid-19 pandemic.

Our key research findings were as follows:

  • There was a lack of information available for people with NRPF on how to access support during the pandemic
  • People with NRPF who contracted Covid-19 were particularly likely to die or become seriously ill
  • People with NRPF struggled to access food and shelter during the pandemic, with local-authority ‘gatekeeping’ continuing to be a major issue

Local authorities have statutory duties towards two categories of people with NRPF: families with ‘children in need’ and adults with care needs. But there are significant variations in how these duties are implemented. Many migrants in need of support were unable to access their entitlements before Covid-19.

During the pandemic, local authorities were called upon by central government to provide support to a third group of people with NRPF who would not normally be eligible for assistance: single homeless adults without care needs. Our research shows that, while some councils put in place effective emergency support for this group, the England-wide response of local authorities was frequently characterised by confusion, a lack of information about support options, and gaps in essential provision (e.g. food).

Our research focuses on the period during which the UK was in ‘lockdown’. But the problems highlighted in our report continue. Local authorities continue to be underfunded and many people with NRPF still live in destitution.

It is unclear what will happen to homeless adults with NRPF who have no statutory entitlement to support as public-health concerns subside. No new legislation or statutory guidance has been introduced during the COVID-19 pandemic to amend the entitlement to local-authority support of people with NRPF who would not ordinarily be eligible.

The effect of the absence of new legislation or statutory guidance has been twofold. Firstly, the support provided to this group has been inconsistent and unpredictable both within and across local authorities. Secondly,  it has been difficult for individuals or their advocates to effectively challenge local authorities in cases where single NRPF adults have been refused support or accommodation or where the accommodation or support offered has been inadequate.

Our research indicates that while some local authorities are trying to respond in a way that respects people’s rights and dignity, others do not want to continue to support people with NRPF, with a number planning to resort to so-called ‘voluntary returns’ or ‘reconnection’. In the view of many of our research participants, only an urgent end to the NRPF system can adequately address the problems that have been highlighted by COVID-19.