Editors’ note: The blog is running a series titled ‘Austerity and Public Law’. The theme explores the implications or impact of the austerity measures in the UK or any European or Commonwealth government have had on public law or the enjoyment of public law rights. We welcome further submissions of 1,000 words or less, though longer pieces may be considered if the subject matter warrants it. You can read past posts in this series here.

In cases involving social housing, English courts have traditionally taken what we might call a ‘managerial’ approach: their starting-point for analysis has not been the tenant or applicant for housing as a rights-holder, but the need of local authorities to distribute their scarce resources effectively. In Burrows v Brent LBC [1996] 1 WLR 1448, for example, where a tenant who was permitted to remain after a possession order was held not to have been impliedly granted a new tenancy, Lord Browne-Wilkinson said that ‘housing authorities try to conduct their housing functions as humane and reasonable landlords’ (at 1455). The tenant might be forgiven for wondering why this should count against him, but clearly the implication is that as ‘humane and reasonable landlords’ local authorities should be left to manage their housing stock with as little interference from the courts as possible. More recently this attitude led to the courts’ extreme reluctance to enable a public sector tenant to rely on article 8 ECHR in possession proceedings. When the Supreme Court finally acceded to pressure from Strasbourg, it nevertheless drew the teeth from the human rights defence by agreeing with the Secretary of State’s submission that ‘a local authority’s aim in wanting possession should be a “given”’ (Manchester CC v Pinnock [2011] UKSC 6, per Lord Neuberger at [53]), so that ‘there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order’ (Hounslow LBC v Powell [2011] UKSC 8, per Lord Hope at [37]). The local authority is simply assumed to be acting in a way which benefits the general welfare; this assumption is then taken to justify the effect of its actions on individuals in all but the most extreme of cases.

However, in three cases decided by the Supreme Court this year, we can see what might just be the beginnings of the turning of the tide. In each of Aster Communities v Akerman-Livingstone [2015] UKSC 15, Nzolameso v Westminster CC [2015] UKSC 22 and Johnson v Solihull MBC [2015] UKSC 30, we see the Court of Appeal take the traditional ‘managerial’ line, only to be reversed by a Supreme Court newly willing to subject local authority decision-making to a much more rigorous scrutiny.

First came Aster, in which a housing association, acting on instruction from a local authority, sought to evict a severely mentally ill tenant from temporary accommodation after he had rejected an offer of permanent accommodation. The tenant argued that the eviction would amount to disability discrimination under section 15 of the Equality Act 2010, in that (a) his rejection of the offer of permanent accommodation was ‘something arising in consequence of [his] disability’ and (b) eviction would not be ‘a proportionate means of achieving a legitimate aim’. The question on appeal was whether the Pinnock approach of taking the presence of a legitimate aim as a ‘given’ applied where the defence was based on discrimination rather than on violation of article 8. The judge at first instance decided that it did, and so struck out the defence as failing to disclose a seriously arguable case. The Court of Appeal agreed with him, with Arden LJ stating that there is ‘no rational basis for saying that the weight to be given to the social landlord’s interest is somehow diminished where the tenant is relying on disability discrimination’ ([2014] EWCA Civ 1081, at [29]).

The Supreme Court, however, were unwilling to extend the deferential Pinnock approach to discrimination cases, and, rather than allowing a generic reference to the importance of managing the social housing stock to stand as justification for a potentially discriminatory act, instead insisted on a detailed consideration of the disabled tenant’s personal circumstances:

‘When a disability discrimination defence is raised, the question is not simply whether the social landlord is entitled to recover the property in order to fulfil its or the local authority’s public housing functions, but also whether the landlord or the local authority has done all that can reasonably be expected of it to accommodate the consequences of the disabled person’s disability… These are questions which a court is well equipped to address.’ (per Baroness Hale of Richmond DPSC, at [32])

Nzolameso concerned a single mother of 5 children whom Westminster City Council owed a duty to house under Part VII of the Housing Act 1996. Westminster purported to discharge this duty by offering her a house in Bletchley, near Milton Keynes, about 55 miles northwest of Westminster and over an hour away on the train. The letter offering her the property contained a standard form paragraph which read:

‘There is a severe shortage of accommodation in Westminster and it is not reasonably practicable for us to offer a Westminster home for everyone who applies for one. That is why we have had to offer you accommodation in Milton Keynes. Although it is outside Westminster, having considered your circumstances, we believe this accommodation is suitable for you.’

Nzolameso appealed the council’s decision on the basis that the accommodation was not ‘suitable’ for her and her household as required by s. 206(1) of the 1996 Act.

The Court of Appeal ([2014] EWCA Civ 1081) were willing to assume that, in reaching its decision that the accommodation was suitable, the local authority took into account the appropriate law and guidance, considered possible alternative options and had good reasons for their conclusion that it was not practicable to offer accommodation closer to Westminster. All this rational decision-making could go on behind closed doors: ‘It was not necessary for [the local authority review officer] to explain in detail what other accommodation was available to Westminster outside its own district and why it had not been offered…’ (per Moore-Bick LJ at [25]).

This did not wash with the Supreme Court, who were unprepared simply to assume that the local authority had reached its decision by weighing up the relevant considerations in a rational way. Viewing the applicant not merely as an object of social welfare but as a bearer of legal right, they held that she was entitled to have the reasons why she had been offered this particular property communicated to her. Save a vague invocation of a ‘severe shortage of accommodation’, the authority had failed to indicate why accommodation in Westminster, or even the whole of Greater London, had not been offered, nor had they given any indication of how the applicant’s personal circumstances had been taken into account. It followed that the authority was not able to show that the property that they had offered was suitable for the applicant.

Interestingly, Baroness Hale went on to lay down guidelines as to how local authorities should approach this kind of decision-making in future ([38]-[42]). They should have a policy for procuring adequate temporary accommodation to meet anticipated demand, and a further policy for how units are to be allocated to individual homeless households. The latter should explain the factors that will be taken into account in offering placements ‘in borough’, and the circumstances under which it would be considered suitable to make offers further away. This part of the judgment represents a marked shift away from previous judicial reticence to interfere with the way in which local authorities go about allocating properties to the homeless, and a new-found concern to ‘enable homeless people, and the local agencies which advise them, to understand what to expect and what factors will be relevant to the decision’ [40].

Finally, Johnson concerned the proper approach to be taken when determining whether an applicant for housing is ‘vulnerable’ for the purposes of s. 189(1)(c) of the 1996 Act. I have commented more fully on this case elsewhere; here I would like to focus on the specific issue of the relevance of the local authority’s scarce resources to the vulnerability assessment. In the Court of Appeal, Arden LJ stated that, when deciding on the question of vulnerability, a local authority is ‘bound to discharge its obligations by taking into account its own burden of homeless persons and finite resources’ ([2013] EWCA Civ 752, at [6]). The local authority’s decision is accordingly seen as one of prioritisation of resources, in respect of which the authority is, presumably, relatively expert. Again, the Supreme Court flipped the focus from the authority as bureaucratic manager onto the applicant as rights-bearer. Since Part VII entitles applicants who satisfy certain requirements to accommodation as a matter of right, the question of whether those requirements are met is not to be determined by a discretionary balancing of competing needs; in Dworkinian terms, it is a matter of principle, not policy. A local authority’s shortage of resources cannot be a justification for depriving an individual of his legal rights. ‘In so far as a balancing exercise between housing the homeless and conserving local authority resources is appropriate, it has been carried out by Parliament when enacting Part VII’ (per Lord Neuberger at [39]). (Note that Lord Neuberger’s discussion here was restricted to assessing priority need under the Housing Act 1996: there was no mention of the vexed question of whether resources are relevant to the local authority’s assessment of community care needs under section 2 of the Chronically Sick and Disabled Persons Act 1970. Despite Lady Hale’s doubts expressed in two recent cases (see here and here), the distinctly managerialist decision in R v Gloucestershire CC, ex p Barry [1997] AC 584 would appear, for the time being at least, to remain good law.)

It is too early to say whether these cases mark a sea change in the attitude of the Supreme Court towards social housing law, but if decision-making in this area is to be held to a more exacting degree of scrutiny by the courts, then in a sense this couldn’t come at a worse time for local authorities. As David Cowan notes in his blog post, the number of homelessness applications has been steadily rising since 2010, and there is no sign of this trend abating. At the same time, of course, local authorities are facing huge cuts in funding from central government, and are unable to make up for the shortfall by increases in council tax without triggering a local referendum under Schedule 5 of the Localism Act 2011. In such circumstances, it takes a bold court to ramp up the standards to which the decisions of under-pressure housing officers are expected to comply. However, the courts cannot allow austerity to function as a cloak to shield authorities from accountability for their decisions. Nor – as Michael Adler’s piece persuasively argues – is austerity a reason for abandoning the rule of law. Accountability requires public bodies to give proper reasons for their decisions, and the rule of law requires that the individuals’ legal rights are not to be sacrificed for the sake of balancing a budget.

The MP for Witney believes that the shortfalls in local authority budgets can be met without making significant cuts to ‘frontline services’. If he is right, then that is good news for the homeless and for those living in social housing. If he is wrong, then his government will have to face this problem head on, either by providing local authorities with extra funds, or by introducing legislation into Parliament to do away with some of the rights that those in need of housing currently have. The alternative – quietly eroding rights de facto without accepting the political cost of abolishing them de jure – is austerity by stealth, and is offensive both to democracy and to the rule of law. The Supreme Court is right to stand up against it.

Alex Latham, Lecturer in Welfare Law, University of Sussex

(Suggested citation: A. Latham, ‘Defending Rights in the Face of Austerity: Is the Supreme Court Calling Time on Social Housing Managerialism?’ U.K. Const. L. Blog (9th Dec 2015) (available at https://ukconstitutionallaw.org/))