R (Cali) v Waltham Forest London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lloyd Jones:,MR JUSTICE LLOYD JONES |
| Judgment Date | 24 February 2006 |
| Neutral Citation | [2006] EWHC 302 (Admin) |
| Docket Number | Case No: CO/2124/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2006 |
[2006] EWHC 302 (Admin)
Mr Justice Lloyd Jones
Case No: CO/2124/2005
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Kevin Gannon (instructed by Messrs Edwards Duthie) for the Claimants
Mr Ranjit Bhose (instructed by The London Borough of Waltham Forest) for the Defendants
In these proceedings the three Claimants bring a challenge to the lawfulness of the scheme for the allocation of social housing adopted by the Defendant pursuant to Part VI Housing Act 1996.
As originally enacted Part VI provided:
“ 159. —(1) A local housing authority shall comply with the provisions of this Part in allocating housing accommodation.
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(7) Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate.
167. —(1) Every local housing authority shall have a scheme (their “allocation scheme”) for determining priorities, and 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.
(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to-
(a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions,
(b) people occupying housing accommodation which is temporary or occupied on insecure terms,
(c) families with dependent children,
(d) households consisting of or including someone who is expecting a child,
(e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and
(f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation.
The scheme shall also be framed so as to secure that additional preference is given to households within paragraph (e) consisting of someone with a particular need for settled accommodation on medical or welfare grounds who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future.
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(6) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.
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(8) A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme.
169. —(1) In the exercise of their functions under this Part, local housing authorities shall have regard to such guidance as may from time to time be given by the Secretary of State.
(2) The Secretary of State may give guidance generally or to specified descriptions of authorities.”
Initially, authorities sought to give effect to the requirement to give reasonable preference by the use of various points-based allocation schemes, in which an award of points was intended to reflect the categories of reasonable preference. Accommodation was then awarded to those with the highest points. However, the Housing Green Paper: “Quality and Choice: A Decent Home For All”, which was published in April 2000, proposed that authorities should set up choice-based letting schemes.
One of the amendments made by the Homelessness Act 2002 to Part VI of the Housing Act 1996 was to insert section 167(1A) which provides:
“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.”
5. Section 169 of the Housing Act 1996 requires an authority to have regard to the guidance published by the Secretary of State. This is in the form of a Code of Guidance on the Allocation of Accommodation. Following the amendment of the Housing Act 1996 in 2002, the Code of Guidance was revised to take account of the 2002 amendments and also to reflect the key points arising from the Court of Appeal judgment in R (A) v Lambeth LBC and R (Lindsay) v Lambeth LBC [2002] EWCA Civ 1084; [2002] HLR 57. The following provisions of the revised Code of Guidance are relevant to the present application.
“5.1. Housing authorities are required by s.167 of the 1996 Act to have an allocation scheme for determining priorities, and for defining the procedures to be followed in allocating housing accommodation. Procedure includes all aspects of the allocation process, including the people, or descriptions of people, by whom decisions are taken. It is essential that the scheme reflects all the housing authority's policies and procedures, including information on whether the decisions are taken by elected members or officers acting under delegated powers. Under s.167 (1A) the scheme must include a statement of the housing authority's policy on offering eligible applicants a choice of accommodation or the opportunity to express preferences about the accommodation offered to them. The scheme must also be framed in such a way as to ensure that reasonable preference is given to certain classes of people. The categories have been revised by the 2002 Act.
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5.8. In framing their allocation scheme so as to determine priorities in the allocation of housing, housing authorities must ensure that reasonable preference is given to the following categories of people, as set out in s167 (2) of the 1996 Act:
(a) people who are homeless (within the meaning of Part 7 of the 1996 Act); this includes people who are intentionally homeless, and those who are not in priority need;
(b) people who are owed a duty by any housing authority under section 190(2), 193( 2) or 195(2) of the 1996 Act (or under section 65( 2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any housing 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; and
(e) people who need to move to a particular locality in the district of the housing authority, where failure to meet that need would cause hardship (to themselves or to others).
5.9. It is important that the priority for housing accommodation goes to those with greater housing need. In framing their allocation scheme to give effect to s.167 (2), housing authorities must have regard to the following considerations:
a) the scheme must include mechanisms for:
i) ensuring that the authority assess an applicants housing need and for
ii) identifying applicants in the greatest housing need.
b) the scheme must be framed so as to give reasonable preference to applicants who fall within the categories set out in s.167(2), over those who do not;
c) the reasonable preference categories must not be treated in isolation from one another. Since the categories can be cumulative, schemes must provide a clear mechanism for identifying applicants who qualify under more than one category, and for taking this into account in assessing their housing need;
d) there is no requirement to give equal weight to each of the reasonable preference categories. However, housing authorities will need to be able to demonstrate that, overall, reasonable preference for allocations has been given to applicants in all the reasonable preference categories. Accordingly it is recommended that housing authorities put in place appropriate mechanisms to monitor the outcome of allocations; and
e) a scheme may provide for other factors than those set out in s 167(2) to be taken into account in determining which applicants are to be given preference under a scheme, provided they do not dominate the scheme at the expense of those in s.167(2) (See para. 5.25 below).
Otherwise, it is for housing authorities to decide how they give effect to the provisions of s.167 (2) of the 1996 Act in their allocation scheme.
5.10. The Secretary of State is of the opinion that there is sufficient flexibility within the statutory framework to enable housing authorities to offer applicants a choice of accommodation while continuing to give reasonable preference to those with the most urgent housing need.
5.11. When considering how to reconcile choice and housing need, housing authorities should consider adopting a simplified system of applicant prioritisation in place of a complex points-based approach. An appropriate approach might include systems that:
(a) band applicants into a number of groups reflecting different levels of housing need, with prioritisation of applicants within these groups being determined by waiting time, and/or
(b) give people in the most urgent housing need priority over other applicants (often by using a time-limited priority card).
5.18. Section 167(2) gives housing authorities the power to frame their allocation schemes so as to give additional preference to particular descriptions of people who fall within the reasonable preference categories and who have urgent housing needs. All housing authorities must consider, in the light of local circumstances, the need to give effect to this provision. Examples of people with urgent housing needs to whom housing authorities should consider giving additional preference within their allocation scheme include:
(a) those owed a homelessness duty as a result of violence or threats of violence likely to be carried out and who as a result require urgent re-housing,...
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