Housing law

Connection provisions

Two recent Court of Appeal decisions have focused on the local connection provisions in part VII of the Housing Act 1996.

Section 198(2) of the Act allows an authority to refer an applicant to another authority where three conditions are met: neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the authority's district; the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of the other authority; and neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.

One of the ways in which a person may establish a local connection is 'if he is, or in the past was, normally resident there, and that residence is or was of his own choice' - section 199(1)(a).

In Al-Ameri v Kensington & Chelsea RLBC; Osmani v Harrow LBC [2003] EWCA Civ 235, the court considered whether accommodation provided under the National Asylum Support Service (NASS) dispersal scheme was capable of providing a local connection with an area.

Both applicants were destitute asylum seekers who were accommodated in Glasgow by NASS under the Immigration and Asylum Act 1999.

After their applications for asylum were successful, each applied to local authorities in London for accommodation under part VII.

In each case, the authority referred them back to Glasgow City Council.

The key issue was whether accommodation provided to destitute asylum seekers can be a residence of the asylum seeker's 'own choice' for the purposes of section 199(1)(a).

Plainly, the choice for an asylum seeker in this situation is between going where he is told to go by NASS and facing penury on the streets.

Is this Hobson's choice any choice at all? The majority of the court (Lords Justice Simon Brown and Carnwath) held that it is not, with the consequence that time spent in accommodation provided under the NASS dispersal scheme cannot give rise to a local connection.

The aim of the NASS dispersal scheme was to relieve some of the pressure on local authorities in London and the south-east.

This judgment will doubtless disappoint many authorities, whose housing resources are seriously over-stretched.

However, it is to be noted that Lord Justice Buxton dissented and the authorities have been granted leave to petition the House of Lords.

In Hackney LBC v Sareen [2003] EWCA Civ 351, the court considered the ambit of statutory appeal process under sections 202-204 of the 1996 Act.

The applicant, a Sikh, applied to the London Borough of Hackney but wished to be accommodated in Ealing.

Hackney made a decision under section 184 that the applicant was eligible for assistance, in priority need and not intentionally homeless, but it refused to refer his application to the London Borough of Ealing.

The applicant requested a review of this decision under section 202 but Hackney argued that such a decision could not be reviewed under section 202.

The applicant appealed against the section 184 decision and the county court judge allowed the applicant's appeal.

The Court of Appeal (Lords Justice Auld and Chadwick) allowed Hackney's appeal.

A decision not to refer an applicant under section 198 cannot be the subject of a statutory review under section 202, with the consequence that the county court has no jurisdiction over such a decision.

Such decisions can only be challenged by judicial review.

By Andrew Dymond, barrister, Arden Chambers, London