Reliance on Ineligible persons for Homelessness / Priority need

Section 185(4) of the Housing Act 1996 originally required authorities to disregard ineligible household members when deciding whether an eligible applicant was homeless or in priority need.

Section 185(4) formerly required authorities to disregard ineligible household members when deciding whether an eligible applicant was homeless or in priority need. However, in R (Morris) v Westminster CC [2005] EWCA Civ 1184 [2006] HLR 8, concerning a British citizen with a daughter subject to immigration control, the Court of Appeal declared Section 185(4) incompatible with Article 14 of the European Convention on Human Rights when read with Article 8.

The government responded by amending Section 185(4) by operation of the Housing and Regeneration Act 2008 Section 314 and Schedule 15. This provided that for all applications made on or after 2 March 2009 the restriction only applies to eligible applications who are subject to immigration control, except for EEA and Swiss nationals. When considering an application from such a applicant, authorities must continue to disregard any dependents or other household members who are ineligible for assistance, for the purposes of deciding whether the applicant is homeless or has a priority need.

The lawfulness of the old Section 185 was considered by the European Court in  Bah v UK 56328/07 [2011] ECHR 1448.  Schedule 15 was described as an "inadequate and grudging approach" to the Morris declaration but the Court expressly stated that they were not ruling on the discriminatory effect of the amendments. They held that it was the immigration status of the child that resulted in his mother's differential treatment but it was reasonably and objectively justified by the need to allocate, as fairly as possible, the scarce stock of social housing in the UK and the legitimacy in so allocating, of having regard to the immigration status of those who are in need of housing. Accordingly, there was no violation of Article 14, when taken in conjunction with Article 8 of the European Convention on Human Rights.

Applicants who are not subject to immigration control, and all EEA and Swiss nationals are now able to rely on ineligible household members to prove that they are homeless and/or in priority need. This does not give such applicants exactly the same rights as applicants who do not have to rely on such household members. An application pursuant to which the authority would not be satisfied that the applicant was homeless or had a priority need , but for the 'restricted person' is called a restricted case. A restricted person is a person who is ineligible and subject to immigration control who either does not have leave to enter or remain in the UK or who has leave subject to a condition of no recourse to public funds.

Section 185(4) as amended still requires authorities to consider the eligibility of household members. It applies to all applications made on or after 2 March 2009 by ineligible applicants who are themselves subject to immigration control.  It does not apply to EEA and Swiss Nationals.

When considering an application from such applicants, authorities must continue to disregard any dependents or other household members who are ineligible, when deciding whether the applicant is homeless or has a priority need.

Applicants who are not subject to immigration control, and all EEA and Swiss nationals, are however now able to rely on ineligible household members to show that they are homeless or in priority need. However, where a full housing duty would be accepted as a result, these cases become "restricted cases" and the applicants do not have exactly the same rights as "normal" applicants.

In a restricted case, the authority must, so far as reasonably practicable, bring the full housing duty to an end by arranging for a private sector offer to be made. This means an offer of an assured shorthold tenancy of at least 12 months made by a private sector landlord to the applicant with the approval of the local authority pursuant to arrangements made by the authority with the landlord.

In a restricted case, the full housing duty ends if the applicant, having been informed of the possible consequences of refusal of the offer and the right to request a review of the suitability of the accommodation, either accepts or refuses a private rented sector offer. Where it is not reasonably practical to bring the full housing duty to an end with a private rented sector offer, the authority may discharge the duty in the same way as any other application.

The Court of Appeal granted permission for a challenge to the lawfulness of the restricted cases regime in Lekpo-Bozua v Hackney LBC [2010] EWCA Civ 90 [2010] HLR 46 but the issue was not pursued in the substantive appeal because the cases did not in fact involve a restricted case.

 

 

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