20 January, 2010
2009 saw a significant number of judicial review claims being brought against social housing providers for tenancy-related decisions. Since the decision in the case of R (on the application of Weaver) v London & Quadrant Housing Trust  EWCA Civ 587, it has been the case that social housing providers can be scrutinised in this manner.
A case that was heard before the decision in Weaver, but remains nonetheless of relevance to social landlords, was R (on the application of M) v Hackney London Borough Council  EWHC 2555. This concerned the decision to refuse to transfer a tenant to a ground-floor flat on the basis of public protection. Issues such as whether social landlords have adhered to their own policies and procedures may prove to be a growing trend in the coming year and consequently this decision should be noted.
The tenant (M) applied for judicial review of the local authority's (H) decision not to transfer him to ground-floor accommodation. M was severely disabled and as a result of this, he was effectively housebound and was only able to leave his specially adapted flat with help. H had assessed M's need for a ground-floor residency as being 'critical' and classified his needs as 'Grade A' under its housing allocation criteria.
M was then made subject to a sexual offences prevention order under the Sexual Offences Act 2003 after complaints from a 15 year-old boy of inappropriate conduct whilst he had visited M. Subsequently, M was offered ground-floor accommodation, which happened to be located near to a children's playground. On that basis, M informed his Housing Manager of the prevention order so that she could confirm that he accepted the offer of accommodation. H then withdrew the offer to M, because of this information.
Later, M was informed of the outcome of a Multi Agency Public Protection Arrangements meeting. This meeting had reached the decision that H's housing department would not be able to offer him a housing transfer because of the greater need to protect the public. An appeal by M against this decision was dismissed.
M judicially reviewed the decision, arguing that there was no indication in H's correspondence with him that it had considered its own housing allocation criteria, that it had not provided any justified reason for its refusal to offer him ground-floor accommodation and in any event, the decision did not fall within the scope of H's allocation criteria.
The High Court refused M's appeal. It held that it would have been obvious to M why the decision not to offer him ground-floor accommodation had been taken: he had informed H of the sexual prevention order and had to have known why it was that the offer was subsequently withdrawn. The basis of the decisions would therefore have been obvious to M. Accordingly, the allegation that H had failed to give reasons could not be sustained.
Secondly, the High Court ruled that H was entitled to place a very heavy weight on the allegations made against M and were permitted to treat the behaviour serious and its concerns could not be said to be fanciful. The fact that M had not been committed of any offence, did not make the behaviour any less serious. Accordingly, H was able to reach the decision it did (notwithstanding M's classification of having 'critical' needs) by reason of both the provisions of the Housing Act 1996 and its own housing allocation scheme.
This case has shown that provided a social landlord can show to a court that a decision they have reached is a reasonable one and that it is in keeping with any relevant policy and procedure, a court will be reluctant to interfere with this decision.
In order to arrive at this outcome, a landlord will need to keep all applicable guidelines and documents in mind when dealing with requests and applications relating to the operation of a tenancy. Documenting that this is the case and creating a comprehensive 'paper trail' will also assist in achieving this aim.