R (Morris) v Westminster City Council - discrimination in allocation of housing [2006] CFLQ 113

This article provides an analysis of R (Morris) v Westminster City Council, (Morris) recently upheld by the Court of Appeal. Keith J issued a declaration of incompatibility under section 4 of the Human Rights Act 1998 in respect of section 185(4) of the Housing Act 1996. This provision was found to be incompatible with Article 14 read with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention). The incompatibility arises from the fact that the provision requires the dependent child of a British citizen, where that child is subject to immigration control, to be disregarded when determining whether the British citizen has a priority need for accommodation. The impossibility of a local council considering a British citizen in this position as a priority for housing means that she is discriminated against in her enjoyment of the right to respect for family life, as guaranteed by Article 8. This decision follows the approach of the UK courts to Article 14, as introduced in Wandsworth London Borough Council v Michalak, and developed in later cases, in applying a four-question test for discrimination. However, Morris may well be the last case to use the Michalak questions, as they were disapproved in the House of Lords' decision in R (Carson) v Secretary of State for Work and Pensions; R (Reynolds) v Secretary of State for Work and Pensions, decided after Morris. Morris is the one of a series of decisions under the Human Rights Act 1998, and by the European Court of Human Rights, making arguments on economic or social rights by means of Article 14 read with Article 8. The scope of the European Convention is arguably being extended to cover discrimination in the enjoyment of rights which are otherwise not protected by the European Convention, but rather by the European Social Charter. This article evaluates the merits of using discrimination arguments to achieve the implementation of economic and social rights.