States of Jersey Complaints Board: findings – complaint against a decision of the Minister for Housing regarding a refus

STATES OF JERSEY

STATES OF JERSEY COMPLAINTS BOARD: FINDINGS –

COMPLAINT AGAINST A DECISION OF THE MINISTER FOR HOUSING REGARDING A REFUSAL TO GRANT HOUSING QUALIFICATIONS

Presented to the States on 10th November 2009 by the Privileges and Procedures Committee

STATES GREFFE

2009   Price code: B  R.123

REPORT

Foreword

In accordance with Article 9(9) of the Administrative Decisions (Review) (Jersey) Law 1982 as amended, the Privileges and Procedures Committee presents the findings of the Complaints Board constituted under the above Law to consider a complaint against the Minister for Housing regarding the refusal to grant Housing qualifications under  Regulation  1(1)(g)  of  the  Housing  (General  Provisions)  (Jersey) Regulations 1970.

Connétable J. Gallichan of St. Mary ,

Chairman, Privileges and Procedures Committee.

STATES OF JERSEY COMPLAINTS BOARD 27th October 2009

Findings of the Complaints Board constituted under

the Administrative Decisions (Review) (Jersey) Law 1982 to consider a complaint by Mrs X (represented by Deputies S. Pitman and J.A. Martin) against the Minister for Housing regarding the refusal to grant Housing qualifications under Regulation 1(1)(g) of the Housing (General Provisions) (Jersey) Regulations 1970

1. Present – Board Members

Mrs. C. Canavan, Chairman Mr. T.S. Perchard

Mr. F. Dearie

Complainant

Mrs. X

Deputy S. Pitman of St. Helier Deputy J.A. Martin of St. Helier

On behalf of the Minister

Senator T.J. Le Main, Minister for Housing Mr P. Bradbury, Director, Population Office Mrs. T. Worboys, Housing Control Manager

States Greffe

Mrs. L. Hart , Assistant Greffier of the States

The hearing was held in public at 9.30 a.m. on 27th October 2009 in the Blampied Room, States Building.

2. Summary of the dispute

2.1  The Board was convened to hear a complaint by Mrs. X against a decision of the Minister for Housing to refuse her application for residential qualifications to be granted  under  Regulation  1(1)(g)  of  the  Housing  (General  Provisions)  (Jersey) Regulations 1970 (hereafter referred to as the Regulations').

3. Summary of the Complainant's case

1. The Board had received a brief summary of the Complainant's case before the hearing and had taken note of the submissions made on her behalf.
2. Deputy S. Pitman commenced by asking whether it would be possible to protect the identity of the complainant and it was agreed that the names and addresses of the individuals concerned would not be included in the text of the Board's findings.
3. Deputy Pitman advised that she and Deputy J.A. Martin were supporting Mrs X's application for consent on Human Rights grounds. Mrs. X had not felt safe remaining in  Thailand  after  her  marriage  had  broken  down,  particularly  after  her  estranged

husband had taken her children away from her for a time and had allegedly been physically abusive on one occasion. She had decided to return to Jersey as Mr. X had made it clear that he had no intention of moving back to Jersey and she had felt that the Island offered a safe environment in which to raise her two young Jersey born sons.

4. Deputy  Pitman  argued  that  due  to  government  interference'  Mrs. X  was  being restricted from full enjoyment of a family life in Jersey. Housing Regulations limited the accommodation she could rent and she was currently living in a one bedroom flat and sleeping on the couch, in order that her sons could share the bedroom. Deputy Pitman asserted that this impinged upon the quality of family life for Mrs. X and her sons and they had lived a very unsettled existence since returning to Jersey, as a consequence of having to move so frequently.
5. Deputy Martin cited that the main reason given by the Housing Department for refusal of Mrs. X's  application  had  been  the  current  housing  situation'.   Deputy  Martin questioned why this was a factor, given that any shortage of accommodation was a result  of States  policies  and could  not  be attributed  to Mrs. X.   Deputy  Martin emphasised that Mrs. X had lived inJersey for over 5 years before she had moved back to Thailand with her husband, at his behest. She contended that had she remained in Jersey and the marriage failed, it was likely that Mrs. X's application would have been regarded more favourably. Deputy Martin advised that the family had moved several times since they had returned to Jersey and Mrs. X sought qualifications, not for any financial gain, but in order to secure a settled future for her sons in a more permanent home.
6. Deputy  Pitman  emphasised  that  Mrs. X  had  not  wanted  to  return  to  Thailand  in September 2004, but had followed her husband. Deputy Pitman refuted the notion that the application was based on financial hardship and argued that there was no evidence to support this view.
7. Deputy  Martin  considered  that  one of the  reasons  cited  within  the  Minister's submission outlining the grounds for refusal, namely that granting qualifications to Mrs. X would exacerbate the imbalance between supply and demand in the Island's housing market, was not a sustainable argument and not pertinent to Mrs. X's case.
8. The Chairman questioned what advice Mrs. X had received regarding the Human Rights  issues  which  had  been  raised  and  the  meeting  was  advised  that  Mrs. X currently received legal aid support in relation to her attempts to secure maintenance payments from her estranged husband, but would consider pursuing an appeal under Article 8 of the Human Rights (Jersey) Law 2000 if legal aid could be secured. Deputy Martin considered that Mrs. X's two Jerseyborn children were being denied the  right  to  a  family  home  and  she  reiterated  that  moving  accommodation  so frequently had disturbed their family life. She anticipated that Mrs. X and her family would be able to find a more suitable and permanent dwelling in the private rental sector. Deputy Martin disputed that there was a limited supplyofsuch accommodation in the unqualified quarter.
9. The Chairman questioned the reasons why the family had moved so may times since their return to Jersey and was assured that this was not a consequence of financial pressures. As a tenant in the unqualified sector, there was very little security of tenure, no lease agreements and limited rights. Mrs. X had been at the mercy of her landlords and, in some cases, had been asked to move on because other tenants had complained about the presence of the children, not withstanding the fact that the boys were well behaved. Deputy Pitman concluded that Mrs. X and her sons were entitled under the Human Rights (Jersey) Law 2000, to respect for private and family life and their home, without interference by a public authority and she opined that they were being denied all three in their present housing situation.

4. Summary of the Minister's case

1. The Director, Population Office outlined the key aspects of the Minister's case. He emphasised that under the Housing (Jersey) Law1949, the Minister's objective was to prevent  any further  aggravation  of the  housing  shortage'  and  the  Minister  was therefore responsible for the regulation of the Housing market. Regulations enacted under the aforementioned Law set out the classes of persons to whom the Minister could grant consent, subject to certain criteria being met. When granting consent under Regulation 1(1)(g) the Minister had to balance the hardship (other than financial hardship) caused to the applicant by refusal, against the impacton the accommodation available within the community should the application be granted. The Population Office had a long established Marriage Breakdown Policy which stated that consent would  normally  be granted  to  an  unqualified  spouse  or partner  with  parental responsibility ofany children from the marriage, providing the applicant had been married to or living with the qualified spouse or partner in the Island for at least the previous five years and had been continuously resident in Jersey for at least the previous ten years.
2. The Director,  Population  Office  highlighted  that  whilst  Mrs. X  had  parental responsibility  for  her  two  sons,  she  did  not  satisfy  the  criteria  for  length  of co- habitation or continuous residency in the Island and therefore did not fit under the Marriage  Breakdown  Policy.  The application  had  been  refused  at  officer  level, referred to the then Assistant Minister and then the Minister – both of whom had maintained the refusal. The Meeting was advised that an indication of the housing shortage was provided by the States Rental Waiting List, which had been growing steadily over the last few months as a result of the economic downturn and there was a dearth of suitable first time buyer/affordable homes. As a result there were many people in the Island in the same situation as Mrs. X and, although no two applicants circumstances  were  identical,  the  Minister  had  an obligation  to  administer  the Regulations in a consistent manner. It was not considered unreasonable to expect someone  to  complete  10 years  residency  before  being  granted  residential qualifications in their own right.
3. The Housing Control Manager advised the Meeting that she had 15 years experience in determining hardship applications and it was tempting to believe that exercising leniency in one instance would not have an impact, but with several applications being received by the Department on a weekly basis, it was important to adhere to the policy and  avoid  setting  precedents.  Discretion  was  used  within  defined  limits.  The Department  had  every  sympathy  for  Mrs. X  but  acknowledged  that  there  were thousands of people living in similar situations within the lodging house sector and granting Mrs. X a consent under Regulation 1(1)(g) would set a huge precedent and result in many others claiming a right to qualify and the imbalance between supply and demand worsening.
4. The Housing Control Manager stated that the Department had discounted Mrs. X's previous period of residency from November 1998 to September 2004, and considered that her current period of continuous residency commenced on 21st January2008. Absences from the Island were problematic, but in this case Mrs. X had left the Island for over three years – more than half the period of residency she had previously completed.
5. The Housing Control Manager advised that the fact that Mrs. X's sons were Jerseyborn had not been a consideration when adjudicating her application. The Meeting was advised that over a thousand lodging houses were registered to take children, over 90 per cent were currently occupied by families and it was safe to assume that the majority of children would be Jersey born. There was no automatic right to be granted residential qualifications ifone was born in the Island. It was noted that the Jersey

born  children  of  residentially  qualified  parents  were  still  required  to  complete  a minimum  of  10  years  residency  in  Jersey  before  being  granted  residential qualifications in their own right.

6. The Minister for Housing maintained that he would normally only deviate from the policy criteria for hardship cases when there were exceptional circumstances, such as medical  or social  problems  in  relation  to  the  parents  or children.  Consent  under Regulation 1(1)(g) had never been given the grounds of financial hardship or the poor standard of accommodation occupied. Every case was considered equally in line with the same criteria and the Minister believed that Mrs. X's application was based on financial hardship only. There was evidence that Mrs. X's sons' childcare costs had been funded by Centre Point and she had  made a request to Social Security for financial assistance. The Minister argued that there had been no firm evidence to support the allegations made against Mrs. X's estranged husband and he advised that he had received an e-mail from Mr. X complaining about his lackof rights as a father. The Minister questioned why Mrs. X had returned to Jersey, where she had no family support and limited employment prospects. The Minister reiterated that a departure frompolicy guidelines would create a serious precedent. The same criteria had to be applied fairly to all Housing Law decisions and he considered that those criteria were Human Rights compliant. It had been Mrs X's decision to return to the Island and the Minister was certain that her application was financially motivated.
7. Deputy Martin refuted the Minister's claim that Mrs. X's application was financially motivated and emphasised that if granted a g' consent, the only benefit which Mrs. X would gain would be the ability to rent within the qualified sector – at full rent. Under the new Income Support system Mrs. X was unable to claimanyformof financial assistance, including rent abatement, as she had not lived in the Island on a continuous basis for the last 5 years.
8. Deputy Martin expressed surprise that the Housing Department had not provided full statistical information regarding the actual number of hardship cases considered each year and the amount granted.
9. The Minister for Housing advised that the Income Support Five Year Rule' would not be an issue if a g' consent was granted as Mrs. X would be able to apply for Social Housing at a subsidised rental rate.
10. Deputy Martin rejected this suggestion and argued that Mrs X would have to pay the fair market rent and therefore would not make any financial gain.
11. The Minister for Housing maintained that Mrs. X would be able to apply for Social Housing  and  would  be charged  an  affordable  rent  based on a  percentage  of her income.
12. Deputy Martin disputed this and reminded the Minister that the rent abatement scheme had ceased and been replaced by the new Income Support Scheme which required a 5 year residency. Therefore Mrs. X would receive no financial assistance towards her rent. Deputy  Martin underlined the  fact that  there  was  a disconnect between the current Housing and Income Support Laws in this regard.
13. The Housing  Control  Manager  reminded  the  meeting  that the  issue  was  whether Mrs. X qualified under the hardship criteria. She asserted that the application was financial motivated and predicated on the fact that Mrs. X could not afford suitable family accommodation at present.
14. Deputy Pitman emphasised that Mrs. X would need to complete 5 years continuous residency before she was entitled to Income Support. She responded to the Minister's claims that no evidence had been given to substantiate the allegations of violence, by

reminding the Meeting that police reports would verify that the incidents had occurred and  there  was  also  an  affidavit  from  the  Warmly  Happy  Family  Enhancing Association. Mrs. X had made only one application to Social Security to assist with childcare  costs  and  this  request  had  been  refused.   Deputy  Pitman  advised  that following the incidents in Thailand, Mrs. X simply wanted to create a better life for her children and that is why she had returned to Jersey.

15. Deputy Martin maintained that Mrs. X would receive no financial gain should consent be granted, but she would be able to rent a better standard of family accommodation, which would be more permanent and affordable.
16. The Director, Population Office restated that financial matters should not be a focus, even if more affordable properties were available in the qualified sector. There were around 8,500 people living in the unqualified sector and 1000 registered lodging houses providing family accommodation. It would not be fair on the other people living in the Island in similar circumstances if Mrs. X was granted consent under Regulation 1(1)(g) without meeting the marital breakdown policy criteria or providing sufficient grounds for hardship.
17. Deputy  Martin  again requested  that  a  full  list  of recent  hardship  applications  be provided and the Director, Population Office advised that on average there were 40 such applications a year, but agreed to provide further details to the Board.
18. Mrs. X, addressing the Meeting, refuted her husband's claims. She advised that she had been very happyinJersey and had not wanted to leave, but had returned to Thailand with her husband. Things had not worked out between them and she had been unhappy. Although she did not have any family in the Island, she had many Jersey and Thai friends. Following the incidents in Thailand she had decided to bring her children back to Jersey so they could have a safe, happy family life together. She had not been aware of the housing difficulties she would face, and didn't understand why she could not come back to Jersey. The Minister for Housing replied that no one wished to prevent her living in Jersey – she simply could not be granted housing qualifications before completing the minimum residency period.

5. The Board's findings

1. The Board acknowledged that the Minister for Housing and his Department had acted in  accordance  with  the  current  policies  in relation  to  granting  consent  under Regulation 1(1)(g) of the Housing (General Provisions) (Jersey) Regulations 1970on the grounds of hardship. It was recognised that exceptions to policy were extremely rare and usually based on an applicant's medical or social circumstances.
2. With regard to the specific allegation that the refusal breached the Human Rights (Jersey) Law 2000, the Board considered that this was a matter for the Courts to decide and that the threat of the Human Rights claim (successful or otherwise) was no reason to overturn the refusal.
3. The Board  could  only  recommend  that  the  Minister  reviewed  a  decision  if it considered that there had been a flaw in the decision making process. The Board, whilst having every sympathy for Mrs. X's situation and a high regard for her efforts to provide a stable home for her young sons, accepted that in making the decision to refuse her application, due process had been followed. TheBoard, having carefully reviewed the decision made by the Minister and his Department, found it to be entirely in accordance with the policies which applied to the application. Accordingly the Board had no option but to reject the Complainant's contention that the decision made by the Minister could be criticised on any of the following grounds –

1. contrary to law;

2. unjust, oppressive or improperly discriminatory, or was in accordance with a provision  of any  enactment  or practice  which  is  or might  be unjust, oppressive or improperly discriminatory;

3. based wholly or partly on a mistake oflawor fact;
4. could not have been made by a reasonable body of persons after proper consideration of all the facts; or,

5. contrary to the generally accepted principles of natural justice.

4. The Board  expressed  some  concern  that  there  appeared  to  be some  uncertainty regarding the rights and entitlements conferred by the granting of a g' consent under the former benefit systems, and those available under the new Income Support system. Subsequent to the hearing, theBoard sought confirmation from the Social Security Department  with  regard  to  the  situation.  The Policy  Director,  Social  Security, confirmed that, should a person with less than 5 years continuous residency be granted Housing consent by the Minister for Housing on hardship grounds, the Minister for Social Security would consider exercising his discretion to ensure that, whilst the person concerned would not qualify for Income Support under that law, they could be given weekly support that was equivalent to their income support entitlement to assist with  rental  costs.  The Board  also  received  updated  figures  from the  Housing Department outlining the number of hardship cases for 2008/2009 and it was agreed that these should be attached as an Appendix to the findings.

Signed and dated by:  .....................................................................................

Mrs C. Canavan, Chairman

..................................................................................... Mr. T.S. Perchard

.....................................................................................

Mr. F. Dearie

APPENDIX