About this case:

• Citation:
  [2022] NIKB 17
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Michael Humphreys

The court found that it was irrational to undermine the applicant’s attempt to be rehoused where police evidence had shown that he had been given “48 hours to leave the area” by the UDA.

Background

In this judicial review application, the applicant challenged the failure of the NIHE to grant him ‘intimidation points’ when allocating his housing.

The applicant stated that he had been under a credible and verified threat to his life from a paramilitary organisation, the UDA.

Under article 22 of the Housing (Northern Ireland) Order 1981, the NIHE is obliged to allocate dwellings in accordance with a scheme approved by the Department for Communities.

This scheme is based on a points system, with properties allocated to applicants on the basis of the number of points they hold. Rule 23 of the scheme provides that an applicant will be awarded intimidation points where:

1. The applicant’s home has been destroyed or seriously damaged as a result of terrorist, racial, or sectarian attack, or because of an attack motivated by hostility because of an individual’s disability or sexual orientation; or

2. The applicant cannot reasonably be expected to live or to resume living in his home because if he were to do so there would, in the opinion of the Designated Officer, be a serious and imminent threat that the applicant would be killed or seriously injured as a result of terrorist, sectarian, or racial attack.

An applicant that meets this test is awarded 200 points, which effectively means they gain priority over all other applicants. An intimidation assessment is often evaluated by interviews, a report from the PSNI, or information from other sources.

The application

The applicant had a long history of paramilitary beatings from the UDA. In the past he had applied for, and was awarded, intimidation points, including being rehoused in February 2021.

There were three distinct events in 2022 alone, which included threats from a UDA commander to be shot and have his property burnt, and the appearance of a man carrying a gun on his property.

In July 2022, he received a fresh death threat, followed by a visit from police officers stating that his life was in danger and that he had 48 hours to leave the property. A police form noted:

On each occasion, the applicant’s application for intimidation points was refused.

Following this, the applicant brought judicial review proceedings arguing that: the NIHE erred in law by failing to award intimidation points; the NIHE failed to take relevant evidence of risk into account; and that the refusal to award points was irrational in light of the evidence.

The decision

In July 2022, the PSNI confirmed that a threat had been issued, but they were not aware of its source or level. On further enquiry, the PSNI stated: “After speaking to Sgt and Insp the threat is still low level. Unaware of the area it relates to. 48 hours to leave.”

The Designated Officer assigned to the case stated that “the circumstances did not fully meet the criteria for an award of points under Rule 23”. She noted that the applicant was at risk, but that there was no “imminent risk of being killed or seriously injured”.

The Designated Officer noted that those involved answered that they were “’concerned’ for the applicant’s safety”, but did not say that the risk was a serious and imminent one.

Further, it later came to light that the NIHE had in its possession a report about one of the incidents in question, which was not taken into account for the decision to refuse intimidation points. This report noted “serious concerns for the client’s safety in loyalist areas of Belfast”.

Having later been given the opportunity to inspect this report, the Designated Officer did not change her stance, noting that this information would have made no difference on her decision, since she accepted that the risk was ‘serious’ but determined that it was not ‘imminent’.

Consideration

The court noted that the scheme was clear and non-discretionary. Where the criteria for the award of intimidation points were met, there was a legal obligation to award them. The NIHE now accepted that there was a threat of death or serious injury, but declined to award points on the basis that such risk was not imminent.

However, the court considered the language of article 2 of the ECHR and its test of ‘real and immediate risk to life’. According to Re C [2012] NICA 47, ‘real and immediate risk’ refers to a risk which was not remote or fanciful and which was present and continuing.

Here, the court determined that the proper test to be applied by a Designated Officer operating this scheme was identical to the test for 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.

Had the Designated Officer applied this test, the outcome “may well have been different”. As a result, the NIHE committed an error of law which vitiated the decision-making process.

Further, the failure to take additional material consideration into account at a later date also rendered the decision irrational in the broader Wednesbury sense.

Conclusion

Ultimately, the court determined that 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 was plainly illogical to find that the risk was not imminent.

For these reasons, the application for judicial review succeeded, and the judge made an order quashing the decision of the NIHE.