R (Ahmad) v London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice May,Sir Anthony Clarke MR |
| Judgment Date | 29 February 2008 |
| Neutral Citation | [2008] EWCA Civ 140 |
| Docket Number | Case No: C1/2007/2245 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 February 2008 |
[2008] EWCA Civ 140
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Nicholas Blake QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Anthony Clarke Mr
Lord Justice May and
Lord Justice Richards
Case No: C1/2007/2245
CO/8047/2006
Christopher Baker (instructed by London Borough of Newham) for the Appellant
Robert Latham (instructed by Edwards Duthie Solicitors ) for the Respondent
Hearing date : 28 November 2007
This case concerns the lawfulness of the allocation scheme adopted by the London Borough of Newham (“Newham”) pursuant to s.167 of the Housing Act 1996 (“the 1996 Act”) for determining priorities in allocating housing accommodation. Nicholas Blake QC (now Mr Justice Blake, but sitting at the time as a deputy High Court Judge) found that the scheme was unlawful in failing to take adequate account of the cumulative needs of the claimant's family. Newham appeals against that decision. The claimant supports the decision and, by a respondent's notice, advances additional grounds of challenge which were rejected by the deputy judge.
The facts
The claimant is marriedhas four children, namely Shaira (now aged 15) Amaan (aged 10), Riddah (aged 5)Huzaif (the youngest). The family occupies a two-bedroom wheelchair-accessible ground floor property of which the landlord is a registered housing association. The claimanthis wife share a bedroom, in which Huzaif also sleeps. The three other children share the second bedroom. The accommodation is plainly overcrowded, but it is not statutorily overcrowded within the meaning of Part 10 of the Housing Act 1985.
In addition, two of the children have health problems. Shaira was disabled from birthhas a set of medical conditions for which she requires full-time carevarious items of special equipment. She suffers from epileptic seizures, screaming fits, vomitingirregular sleep. It is undisputed that her condition impacts upon her housing needsthose of her siblingsthat she requires her own bedroom.
Of the siblings, Amaan is the most affected by sharing a bedroom with Shaira. His constant tiredness at school is attributed to the disturbed nights. He also suffers from allergies, general behaviour disorderincontinence. The allergies require him to occupy a cool, well-ventilateduncarpeted room. For thoseother reasons it is contended that Amaan, too, requires his own bedroom.
The claimant himself is not in the best of health. He has been chronically depressed for some yearsis in receipt of psychological therapy. His family's housing circumstances are said to exacerbate his condition.
The claimant has been the tenant of his present accommodation since 1994. In August 1999 he applied to Newham for a transfer to larger accommodation. Under the allocation scheme operated by Newham at that time, he was granted overriding medical priority on medical grounds. He received offers of accommodation but refused those offers on the ground that the accommodation was not suitable. He is eligible for a four-bedroom wheelchair-accessible property, but such properties are in extremely short supply in Newhamit is therefore very difficult for his requirements to be met.
In September 2002 Newham introduced a new allocation scheme. For a short transitional period the medical override under the old scheme was carried forward to a limited extent into the new scheme, but it still did not lead to the claimant obtaining what he regarded as suitable accommodation. It is the application of the new scheme to him since that transitional period ended which is the subject of these proceedings. He complains in particular that the scheme does not give him the priority that he should be given in the light of the needs of his household taken as a whole.
Before examining the issues in detail, it will be helpful to set out the statutory provisions, the effect of the relevant case-law, the Secretary of State's statutory guidancerelated materials,the principal features of the scheme itself.
The statutory provisions
Section 159(1) of the Housing Act 1996 requires a local housing authority to comply with Part 6 of the Act (ss.159–174) in allocating housing accommodation. The material provisions are contained in s.167, which in its current form provides:
“(1) Every local housing authority shall have a scheme (their 'allocation scheme') for determining priorities,as to the procedure to be followed, in allocating housing accommodation.
For this purpose 'procedure' includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken.
(1A) The scheme shall include a statement of the authority's policy on offering people who are to be allocated housing accommodation –
(a) a choice of housing accommodation; or
(b) the opportunity to express preferences about the housing accommodation to be allocated to them.
(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to –
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local housing authority under section 190(2), 193( 2) or 195(2) (or under section 65( 2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds (including grounds relating to a disability); (e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or others).
The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of people with urgent housing needs).
(2A) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2);the factors which the scheme may allow to be taken into account include –
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a personthe authority's district.
…
(2E) Subject to subsection (2), the scheme may contain provision about the allocation of particular housing accommodation –
(a) to a person who makes a specific application for that accommodation;
(b) to persons of a particular description (whether or not they are within subsection (2)).
…
(6) Subject to the above provisions,to any regulations made under them, the authority may decide on what principles the scheme is to be framed.”
As originally enacted, s.167 was in a simpler form. Subss. (1A)(2A)-(2E), among other provisions, were inserted by the Homelessness Act 2002 (“the 2002 Act”). The descriptions of people to whom reasonable preference is to be given under subs. (2) were amended at the same time, though those differences are not important for this case.
The relevant case-law
R v Islington London Borough Council, ex parte ReillyMannix (1998) 31 HLR 651 (“the Islington case”), a first instance case decided by me, concerned the application of an allocation scheme to secure tenants of the authority who applied for transfers to alternative accommodation. The situation was held not to be governed directly by Part 6 of the 1996 as then enacted; but it was relevant that the authority, in the exercise of a broad discretion, had decided to apply the same system for determining priorities to transfer applicants as to applicants to whom the provisions of Part 6 did apply. Under the scheme, priorities were determined on the basis of points awarded by reference to defined categories of housing need, with a residual power in the chief housing officer to award additional points so as to bring an applicant higher up, or to the top of, the priority list. The principal reason why the scheme was found to be unlawful was that the authority had decided to place very considerable weight on the respective needs of applicants but had adopted an unreasonable approach towards the assessment of need. As I put it (at p.666):
“There can be no doubt that, subject to the residual discretion, the method of calculating allocations points under the present scheme is incapable of producing a fair assessment of applicants' respective housing needs. That is because it makes only very limited allowance for multiple categories of need …makes no allowance at all for the number of persons within the applicant's household who are affected by a particular category of need …. There is no possibility of a 'composite' assessment, to use the applicants' expression.
Nor do I think that the residual discretion can be viewed as a rational way of redressing the balance ….
The conclusion I reach is that the authority's present allocations scheme, in failing to make adequate provision for a composite assessment of housing need, is one that no reasonable authority would adoptis unlawful for that reason ….
I stress that it is for the authority to decide on the particular categories of need to be included in an allocations scheme of this kind,to decide into which categories individuals fall. The criticisms made in this judgment relate to a broad question of approachare not intended...
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