Caldwell Recklessness is Dead, Long Live Mens Rea's Fecklessness
| DOI | http://doi.org/10.1111/j.1468-2230.2004.496_2.x |
| Date | 01 May 2004 |
| Author | Kumaralingam Amirthalingam |
| Published date | 01 May 2004 |
CASES
From Need to Choice: R(A) vLambeth LBC;
R(Lindsay) vLambeth LBC
Dave Cowan and Alex Marsh
n
In the housing Green Paper, published in 2000, it was suggested that many of the ills
of social housing could be alleviated by changing the way it is allocated ^ from a
system based upon a bureaucratic assessment of housing need to one which respects
and prioritises customer choice.
1
It was suggested that the government wanted local
authorities ‘to see themselves more as providers of a lettings service which is respon-
sive to the needs and wishes of individuals, rathertha npurely as housing ‘‘allocators’’’.
2
In 2001, the government funded a pilot programme of 27 schemes implementing
choice-based lettings.
3
TheGovernmenthasannouncedthat,by2005,itexpects25
per cent of local authorities to let properties on a cho ice basis, to increase to al l local
authorities by 2010, although it is not prescriptive as to how that should be done and
further guidance awaits the results of the evaluation of the pilot programme.
Lambeth LBC was not one of the pilots funded under the Government
programme, but, perhaps sensing the way the wind was blowing, elected to
develop its own brand of choice based letting scheme.The Court of Appeal has
now determined that Lambeth’s scheme is unl awful because it did not give a
‘reasonablepreference’ to those households requiredby legislation.
4
The judgment
poses questions regarding the legality both of the models of choice based lettings
developed as part of the pilot programme and of schemes developed elsewhere.
This doubt is not materially a¡ected by the implementation of the Homelessness
Act 2002. Thus, despite considerable ¢nancial resources ploughed into the pilots
and other local authority housing capital resources,
5
a discursive and ideological
n
Universityof Bristol.
1DETR,Quality and Choice: A Decent Home for All, the Housing Green Paper, (London: DETR,
2000), paras 9.5^7.The subsequent White Paper stated that the government ‘remained ¢rmly of
the view’that choice should be explicitly incorporated into allocations policies, as it would help
to create sustainable communities and make better use of the national housing stock. It was,how-
ever, less prescriptive about how local authorities might incorporate choice in lettings: DETR,
Quality and Choice: A D ecent Home forAll (London: DETR, 2000),para 6.4.
2 Para 9.3; it should be noted that the government saw this as primarily a shift in emphasis: the local
authority’s role as allocator wouldremain, but be more sensitive to customer-expressed choice.
3 The pilot programme ran from April 2001 to March 2003. The report of the evaluation of the
programme is due to be published in late 2003. The authors are members of the research team
responsible for the monitoring and evaluation of the choice-based lettings pilots on behalf of the
ODPM.The views expressed herein are those of the authors and should not be ascribed to the ODPM.
4R(A) vLambethLBC; R(Lindsay)vLambeth LBC [2002] HLR (57) 998
5 Recent guidance developed by the ODPM in collaboration with the Chartered Institute of
Housing concerning the housing i nvestment programme, the mechanism for bidding for capital
¢nance, gives considerable prominence to choice: ODPM & CIH, E¡ective Housing Strategies and
Plans (London: ODPM, 2002).
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(3) MLR 478^507
shift amongstsocial housing providers,
6
together with political rhetoric about the
value(s) of choice, l egal issues remain to be worked th rough.
THE FACTS AND JUDGMENT
In two cases at ¢rst instance, Lambeth’s choice-based lettings scheme was exam-
ined andfound wanting as a matter of law. In ‘A’, the applicant, who su¡ered from
physical and mental disabil ities, and her daughter were living in a si ngle room in a
hostel. She had been referred to the housing department by the social services
department. In Lindsay, th e applicant was a single man who did not have a priority
need under the homelessness legislation. He lived with friends and family or slept
rough. The complaint of both was that the letting s policy of Lambeth operated
against their interests.
Lambeth’s lettings policycame into e¡ect in July 2000, aftera lengthy gestation
period.The policycombined a bureaucraticassessment with customer choice.The
formerassessment placedeach household on its housingregister into one of seven
broad groups.
7
Each group was given a proportion of available properties as they
arose.The choice element was that applicants were able to choose the areaor areas
in which they would accept a property. The broader the area, the more likely the
applicant would be o¡ered a property quickly. As the allocations policy put it,
‘Applicants balance their housing need against their preference: those who feel
their need is pressing will widen theirchoices; those prepared to wait can be more
selective.’
8
Computer programmes demonstrated the length of time applicants
would have to wait in each particular area. Applicantswere then o¡ered properties
on the basis of date order ^ ¢rst come, ¢rst served within theirgroup.
The policy was successfullychallenged on two grounds. First, it was said that
the categories to which the legislation prescribed a‘reasonable preference’ on the
housing register were not provided for in the policy. The Housing Act 1996 pre-
scribed nine categories of persons entitled to such preference.
9
The seven groups
in Lambeth’s scheme were di¡erently framed. In itself, that was not the central
problem. The real problem was that arou nd four per cent of tho se on Lambeth’s
housing register were not entitled to a reasonable preference.They were mixed in
with those who were so entitled. Previous cases had suggested that a household
entitled to a reasonable preference should be given a ‘reasonable head start’ over
those not entitled to such preference.
10
The problem with Lambeth’s sch eme
6 See Centre for Comparative Housing Research, ‘How to Choose Choice’: Lessons from the FirstYear of the
ODPM’s CBL Pilot Sch emes ^ A Guide for Social La ndlords (London: ODPM, 2002); cf P Somerville, ‘A llocat-
ing housing ^ or ‘letting’ people choose?’, in D. Cowan and A. Marsh (eds), Two S te p s Fo r wa r d: H o us i ng
Policyinto the new Millennium (Bri stol: Policy Press, 2001).
7 The groups were those tenants with a right to return to their property having been moved out;
emergencies; supply transfers; mainstream allocations; homeless households; referrals; incoming
nominations fromother social la ndlords.The central point,di scussed below, was that these groups
were di¡erentfrom the legislative categories of persons to whoma reasonable, and additional, pre-
ference was owed.
8 Para 4.
9 S 167(2); as amended by SI 1997/1902.
10 RvWolverhampton MBCex p Watters(1997) 29 HLR 931,937,per Judge LJ.
Cowan and Marsh
479rThe Modern LawReview Limited 2004
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