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A welcome judicial review decision on intimidation points

The High Court has allowed a judicial review into the Housing Executive’s decision not to award intimidation points to a homeless applicant.

18 November 2022
Faith Westwood

The High Court has allowed a judicial review into the Housing Executive’s decision not to award intimidation points to a homeless applicant.

Background to application for judicial review

The applicant in this case had experienced paramilitary attacks in the past. Because of this, the Housing Executive awarded intimidation points and allocated social housing.

In the summer of 2022, his life and property were threatened by paramilitaries again. He presented as homeless to the Housing Executive and asked them to assess him for intimidation points.

The Housing Executive decided he did not meet the criteria for intimidation points. The applicant applied to the High Court for a judicial review of this decision.

High Court ruling quashes Housing Executive decision

Following the hearing, the court concluded that the Housing Executive had made an error in law by failing to understand what a ‘serious and imminent’ threat means.

The court quashed the Housing Executive's decision not to award the points. This means the Housing Executive will now need to make a fresh decision. They must consider the court’s guidance when they do this.

Meeting the criteria for intimidation points

Intimidation points are part of the Housing Selection Scheme. This scheme is a set of rules the Housing Executives uses when doing a housing assessment. They award points based on need and place applicants on a waiting list for a home.

If a person gets intimidation points they are given an extra 200 points. The Housing Executive award the points so they can rehouse certain people quickly.   

The criteria for awarding intimidation points are set out in Rule 23 of the Housing Selection Scheme.

A person experiencing homelessness will only get these points if they meet specific conditions. The Housing Executive must be satisfied there is a serious and imminent threat to the applicant.

They will get intimidation points if:

  • their home was destroyed or seriously damaged in an attack, or
  • there is a risk that they could be killed or seriously injured in an attack, or
  • there is a risk that someone they live with could be killed or seriously injured in an attack

To qualify for these points the threat must:  

  • be made by a paramilitary organisation, or
  • come from a Housing Executive tenant or someone living in a NIHE neighbourhood, or
  • target the applicant due to their religion, race, disability or sexual orientation

Evidence needed to award intimidation points

When deciding if an applicant meets the criteria for intimidation points, the Housing Executive can consider information from

  • PSNI
  • Base 2
  • support organisations
  • their local knowledge

Base2 is a crisis intervention project that offers clarification, support and mediation services to individuals and families at risk of violence or exclusion from their community.

The Housing Executive must be satisfied that the evidence proves the person or their property is at serious and imminent risk.

Understanding ‘serious and imminent’ risk

At the time of the hearing, the Housing Executive had received information from PSNI and Base2. The Housing Executive was satisfied that the applicant was at serious risk. However, they did not accept that the risk was imminent.

The courts disagreed and gave direction on how the Housing Executive should interpret what a ‘serious and imminent’ risk is.

The judge stated:

Imminent’ simply means ‘likely to happen soon

He went on to say:

… NIHE has failed to properly consider the legal threshold of ‘serious and imminent risk.’ Merely to describe it as ‘high’ without any analysis of what the words actually mean puts the decision maker at grave risk of falling into error. In my judgment, the proper test to be applied by a Designated Officer operating this scheme is identical to the test for the engagement of an article 2 right, namely that there is a risk of death or serious injury which is not remote or fanciful and which is present and continuing.

Failure to consider relevant information and evidence

The courts also looked at the Housing Executive’s decision not to consider a report from Base2 when making their initial decision.

Base2 provided a number of reports in support of the applicant’s claim that he was under paramilitary threat. Their final report confirmed they had serious concerns for the applicant’s safety.

The Housing Executive later accepted that this report confirmed the threat was serious, but it was not imminent.

However, the courts stated:

……there was an error of reasoning on the part of the Designated Officer.  The applicant was told he had 48 hours to leave the country by the UDA in circumstances where the use of firearms could not be ruled out.  In light of this, it is plainly illogical to find that the risk was not imminent…….. the decision simply does not add up.

Complaining about intimidation points

In general, the courts ask applicants to try other methods of resolving a dispute, before applying for a judicial review. This could mean submitting an appeal or making a complaint.

However, in this case, the judge agreed to look at the issue straight away without asking the applicant to follow the Housing Executive’s complaints procedure first.

He decided this because:

  • the Housing Executive’s complaints procedure is not statutory or independent
  • the Housing Executive did not put the decision in writing so the applicant did not know the reasons for the decision
  • the judicial review was in the public interest as it involved social housing and paramilitary intimidation
  • it gave the opportunity to provide legal clarity on Rule 23 that would not be available through the complaints procedure

The future of intimidation points

In the Department for Communities’ 2017 Fundamental Review of Allocations, they proposed the removal of intimidation points from the housing selection scheme.

However, in 2020, Communities Minister at the time, Carál Ní Chuilín made a statement expressing her commitment to change how intimidation points work, rather than ending them.

So far, there have been no changes to the housing selection scheme and intimidation points continue to work in the same way.

This judicial review has given essential guidance on how the Housing Executive should interpret the current legislation. It has also given clarity on the importance of taking all relevant information into consideration.

If you, or someone you are working with may be entitled to intimidated points, contact our helpline for free advice.