Clare Cullen defends successful local authority in judicial review of ASB qualifying criterion in housing allocation policy

29 January 2024

Clare Cullen represented the successful defendant local authority in a judicial review challenging its housing allocation scheme which included a provision excluding applicants with a history of serious anti-social behaviour.

The court held that the anti-social behaviour criterion was lawful.

Background to the judicial review

The claimant was a former secure tenant of the local authority. She had a diagnosis of ADHD and autistic spectrum condition.

The local authority had brought possession proceedings against her on grounds of anti-social behaviour. An outright possession order was granted after an appeal.

The claimant applied to the local authority under Part 6, Housing Act 1996.

Local authority’s housing allocation policy

The local authority’s housing allocation policy included an anti-social behaviour qualification criterion which provided:

“Where the Council is satisfied that the Applicant (or a member of their household) is guilty of unacceptable behaviour serious enough to make them unsuitable to be a tenant of the Council, the Applicant does not qualify.”

The provision stated that behaviour could be regarded as unacceptable, among other matters, if it would have entitled the local authority to a possession order under the  Housing Act 1985.

An applicant was able to reapply if they considered that their unacceptable behaviour should no longer be held against them because of changed circumstances.

The local authority decided that the claimant should be disqualified from joining its allocation scheme based on the ASB criterion.

Grounds for judicial review

There was a dispute between the parties about the interpretation of the anti-social behaviour criterion.

The claimant argued that the ASB criterion meant that personal circumstances, such as disability, could not be considered.

The local authority argued that they could.

The claimant argued, amongst other matters, that the ASB criterion was an unlawful fetter of discretion and that it amounted to:

  • indirect discrimination under section 19, Equality Act 2010,
  • discrimination arising from a disability under section 15, Equality Act 2010 and
  • failure to make reasonable adjustments under section 20, Equality Act 2010.

The judge dismissed the claim for judicial review.

The judge held that:

  • the ASB criterion allowed personal circumstances to be considered including disability
  • Part 6 did not require a local authority to include a residual discretion (but, in any event, the local authority’s policy contained one by allowing for direct lets in exceptional circumstances)
  • the claimant had failed to adduce sufficient evidence to raise a case of indirect discrimination, discrimination arising from a disability or failure to make reasonable adjustments or
  • alternatively, the ASB criterion was proportionate under s.19(2)(d) and the exclusion of the claimant was proportionate under s.15(1)(b), Equality Act 2010.

View the judgment in full in Willott, R (on the application of) v Eastbourne Borough Council [2024] EWHC 113 (Admin)