Care leaver as "other status" under Article 14 ECHR

In YA v London Borough of Hammersmith & Fulham [2016] EWHC 1850 (Admin) the Claimant was a care leaver who had a number of spent convictions. He applied to register on the local authority's housing register, but was refused under paragraph 2.14(h) of its allocations scheme, which excludes those who have been "guilty of unacceptable behaviour which makes them unsuitable to be a tenant".

The primary ground, on which the claim succeeded, was that, in taking into account spent convictions, the scheme breached section 4 of the Rehabilitation of Offenders Act 1974. (This appears to give rise to the anomalous position that an applicant who is convicted of a criminal offence in relation to certain conduct would - once the conviction is spent - be able to register, whereas an applicant who was guilty of the same conduct but was not charged could be excluded indefinitely).

The claimant argued an additional ground, namely that paragraph 2.14(h) breached his rights under Articles 8 and 14 ECHR, on the basis that it indirectly discriminated against care leavers, who were likely to have a higher level of criminal convictions and behaviours falling within 2.14(h). Ultimately, the Court dismissed this ground, on the basis that the discriminatory effect was justified, in light of various features of the allocations scheme (paras 75-85).

However, importantly, the Court did find that:

(1) "Care leaver" constituted a "status" for the purposes of Article 14 (paras 63-68); and

(2) Statistical evidence showed that they were likely to have a higher level of criminal convictions and behaviours falling within 2.14(h), such that the scheme was potentially discriminatory (69-74).

Clearly, each of these findings is of potential significance for a wide range of future challenges on behalf of care leavers.

(Ben Chataway of Doughty Street Chambers appeared for YA)