Part 3 of the Housing Act 2004 (“the Act”) provides for the selective licensing by local housing authorities of private sector housing in an area which may be as large as the whole of the local housing authority’s district. In general, where an area has been designated as subject to selective licensing no house in that area which has not been licensed may lawfully be occupied under a tenancy or licence. The issue in the appeals to the Upper Tribunal (Lands Chamber) in Waltham Forest LBC v Khan (2017) UKUT 153 (LC) was whether a local housing authority which has designated an area as subject to selective licensing may have regard to the planning status of a house when considering an application for a Part 3 licence. Each appeal concerned converted flats created without the benefit of planning permission by the respondent, Mr Khan, who subsequently applied to the local housing authority for a Part 3 licence for those flats. In each case the London Borough of Waltham Forest granted a licence for a period of 1 year only with the intention that during that period the planning status of the flats should be regularised. In each case on appeal to the First-tier Tribunal (Property Chamber) (“the FTT”) the period of the licence was increased to 5 years on the grounds that the respondents’ compliance with planning requirements was irrelevant to the question of licensing. The local housing authority appealed against the FTT’s decisions. The appeals were allowed.  It was legitimate to have regard to planning status. Read more »

In R (XC) v Southwark LBC [2017] EWHC 736 (Admin) Garnham J held that the housing allocation scheme operated by the Council under Part VI of the Housing Act 1996 as amended is lawful.  The relative priorities included priority for working households who are making a contribution to the local economy.  The scheme is indirectly discriminatory, but the critical question is whether the discrimination is justified as being proportionate to achieving a legitimate objective.  The scheme has the legitimate aim it set out: the creation of sustainable and balanced communities and encouraging residents to make a contribution to the local community.  The priority “stars” have a rational connection to that objective.  The real question was whether the scheme is the least intrusive measure which could be used without unacceptably compromising the objective.  Garnham J concluded that, looking at the scheme as a whole, it was.  It involved discrimination in order to achieve the stated aims, which are authorised by primary legislation and follow statutory guidance.  Garnham J said, at paragraph 90: “Those who fall outside the groups given preference are, inevitably, exposed to a detriment.  But that is integral to any reasonable preference scheme”.  Nonetheless, two things must be shown: that the measure adopted is the least intrusive which could be used without unacceptably compromising the objective; and that a fair balance has been struck between securing the objective and its effect on the rights of the class of which the claimant is a member.  Garnham J said, at paragraph 97: “Here the Council has devised a scheme which seeks to address the needs of all the classes of applicant in its area.  It has made provision for those with priority need, for the homeless and the vulnerable, and for those who need to move on medical or welfare or hardship grounds. It is entitled, consistent with the Secretary of State’s Guidance, to favour those in work and those who volunteer”. Read more »