R Lindsay v London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS,Lord Justice Judge,Lord Justice Pill |
| Judgment Date | 23 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1084 |
| Date | 23 July 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2001/2780 |
[2002] EWCA Civ 1084
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
SULLIVAN J
SIR CHRISTOPHER BELLAMY
Lord Justice Pill
Lord Justice Judge and
Mr Justice Collins
Case No: C/2001/2780
MARK LOWE Q.C & RANJIT BHOSE, instructed by Judge & Priestly, Solicitors, appeared on behalf of the Claimant/Applicant
ANDREW ARDEN Q.C & IAIN COLVILLE, instructed by Flack & Co, Solicitors, appeared on behalf of the Respondent LINDSAY.
ANDREW ARDEN Q.C & JONATHAN MANNING, instructed by Ziadies Solicitors, appeared on behalf of the respondent "A"
The London Borough of Lambeth, like all local authorities, has an obligation to allocate housing accommodation to those who qualify. At present, the authority is required to maintain a register of such qualifying persons: see ss.161 and 162 in Part VI of the Housing Act 1996 ('The 1996 Act'). That is to be changed by the Homelessness Act 2002 s.14 to a requirement to allocate to eligible persons and the need to maintain a register is to be abolished. Whether they are described as qualifying or eligible, all British citizens and most of those who are given indefinite leave to remain in the United Kingdom are entitled to apply for local authority housing, unless they are the subject of a statutory provision which excludes them. At present, there are no material exclusions.
Section 167 of the 1996 Act is central to these appeals. It provides:—
"167. Allocation in accordance with allocation scheme
(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) who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future.
(3) The Secretary of State may by regulations —
(a) specify further descriptions of people to whom preference is to be given as mentioned in subsection (2), or,
(b) amend or repeal any part of subsection (2).
(4) The Secretary of State may by regulations specify factors which a local housing authority shall not take into account in allocating housing accommodation.
(5) As regards the procedure to be followed, the scheme shall be framed in accordance with such principles as the Secretary of State may prescribe by regulations.
(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.
(7) Before adopting an allocation scheme, or making an alteration to their scheme reflecting a major change of policy, a local housing authority shall —
(a) send a copy of the draft scheme, or proposed alteration, to every registered social landlord with which they have nomination arrangements (see section 159(4)), and
(b) afford those persons a reasonable opportunity to comment on the proposals.
(8) A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme."
The only relevant Regulations are the Allocation of Housing (Reasonable and Additional Preference) Regulations 1997 (1997 No. 1902), which added to the list of those who fall within s.167(2) those who are homeless to whom an authority owes the full housing duty under Part VII of the 1996 Act. Paragraph 2 reads:
"The following are specified as further descriptions of people to whom reasonable preference is to be given in the allocation scheme of a local housing authority —
(a) people owed a duty by that authority under section 193 or 195(2) of the Housing Act 1996 or section 65( 2) or 68(2) of the Housing Act 1985 (main housing duties owed to homeless persons),
(b) people in respect of whom that authority are exercising their power under section 194 of the 1996 Act (power to secure accommodation after minimum period of duty under section 193 of that Act) and
(c) people —
(i) who have within the previous two years been provided with advice and assistance by that authority under section 197(2) of the 1996 act (duty where other suitable accommodation available) or
(ii) who are occupying accommodation secured with such advice and assistance."
Lambeth's allocation scheme was after some two years in the formulation brought into effect in July 2000. It has been declared to be unlawful in both the cases before us. Sir Christopher Bellamy's judgment in the "A" case concludes that the scheme is unlawful on a somewhat wider basis than that of Sullivan J in the Lindsay case. That was because of a change made by Lambeth in September 2000, the effect of which was to give greater preference to the homeless to whom the full Part VII duty was owed. That change meant that A's chances of obtaining accommodation were adversely affected. Such considerations were not directly relevant in the Lindsay case.
Lambeth's scheme, called its Allocation Policy, contains its own exclusions. It is unnecessary to go into detail, but for obvious reasons Lambeth will only take on those who have some connection with Lambeth and will not provide for those who already have a secure house or who have, by their own misdeeds (for example, failure to pay rent) found themselves in housing difficulties. The following are the material extracts:—
"How need is assessed.
Assessment of housing need is in two stages:
The Council's assessment of applicants' housing need reflected by:
— placing them in one of six allocation groups—see page 16.
— in some cases, determining the areas, sides and type of property required—see page 24 onwards.
Applicants' judgment of their own need by making choices that will affect how quickly they are housed.
The Council's policy is to limit its own assessment as far as possible, and to give the freest rein possible to the applicant's choice.
The Council sets broad limits, which vary between the categories of applicant. Within these limits the emphasis is not on what the Council thinks applicants should get, but on what applicants think they need.
Applicants balance their housing need against their preference: those who feel their need is pressing will widen their choices; those prepared to wait can be more selective.
Date—order priority of applicants within groups means that the Council can indicate, through estimated waiting times, the effects an applicant's choices will have on the time it will take to receive an offer of housing.
While the Council does not have the properties to meet many applicants' ideals, emphasising choice should mean offers are closer to expectations.
As choices in the private housing markets are affected by what people can afford, so the time applicants feel they can afford to wait will affect their choices.
Reasonable preference
Section 167(2), Housing Act 1996 stipulates that, among housing register applicants, reasonable preference must go to certain categories. The allocations scheme fulfils this both directly and indirectly.
The reasonable preference categories are:
(a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions.
This is partly addressed by groups B (emergencies) and C (supply transfers).
(b) people occupying housing accommodation which is temporary or occupied on insecure terms.
This is particularly addressed by group E (homeless households).
(c) families with dependent children.
This is particularly addressed by assessing the property size needs of applicants, and setting a maximum size, so that family-sized dwellings are allocated almost exclusively to those with children.
(d) household consisting of or including someone expecting a child.
This is particularly addressed by assessing the size need of a household expecting a child as if the child were already born.
(e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds.
This is partly addressed by group B (emergencies), which includes urgent medical cases.
The requirement that additional preference is given to households who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future is met by group F (referrals).
(f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation.
This is particularly addressed by groups E (homeless households), F (referrals) and G (incoming HOMES).
(g) homeless households —
To whom the council owes a duty under section 193, Housing Act 1996 or s.65(2), Housing Act 1985 (priority, not intentional, homeless).
To whom the council owes a duty under s.195(2), Housing Act 1996, or ...
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