R Lindsay v London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 11 April 2002 |
| Neutral Citation | [2002] EWHC 809 (Admin) |
| Date | 11 April 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4684/2001 |
[2002] EWHC 809 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2
Mr Justice Sullivan
CO/4684/2001
MR IAIN COLVILLE (instructed by Flack & Co., London SW18 4JQ) appeared on behalf of the Claimant.
MR RANJIT BHOSE (instructed by Judge & Priestley, Kent BR1 1JN) appeared on behalf of the Defendant.
Thursday 11th April 2002
1. This is a challenge to the lawfulness of the defendant council's policy for allocating housing accommodation under Part 6 of the Housing Act 1996 (the Act). Section 159 (1) of the Act provides that:
“A local housing authority shall comply with the provisions of this Part in allocating housing accommodation.”
2. The Act provides that all authorities must establish and maintain a register of “qualifying persons” known as a housing register. An authority must allocate housing accommodation only to qualifying persons, and by section 167 any allocation must be in accordance with the authority's allocation scheme. Section 167 provides:
“(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 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….
(8) A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme.”
3. Under section 168 authorities must have regard to guidance given by from time to time from the Secretary of State. The Code of Guidance in paragraph 5.4 sets out what it describes as “the priority categories” in section 167(2). Paragraph 5.5 explains what is meant by reasonable preference:
“The concept of reasonable preference has been used to articulate how authorities should prioritise different indicators of need ever since the term appeared in section 51 of the Housing Act 1935. Its use in the 1996 Act represents a continuation of the existing principles of housing allocation. It means that authorities should give due weight to the factors existed in section 167(2), but it does not restrict authorities to taking only such factors into account. Authorities could add other factors of their own, such as housing key workers coming into the area,… However, authorities should not allow their own secondary criteria to dominate their allocation scheme at the expense of factors in the statutory list.”
5.7:
“It is for each authority to consider how to reflect the categories set out in section 167(2) in the allocation scheme which they devise. A number of possible indicators are given in Annex A to this Guidance. There is no requirement for authorities to give equal weight to each of the factors listed in section 167(2). Generally, authorities will wish to ensure that their allocation schemes give greater preference to the more severe cases of need, whether manifested singly or through a spread of indicators.”
4. Examples are then given.
Paragraph 5.8:
“The flexibility inherent in the provisions of section 167 means that an authority should not operate on the purely formulaic basis. Authorities must behave rationally, taking into account all considerations relevant to housing and social needs, and ignoring irrelevant factors….”
5. Paragraphs 5.16 and 5.19 explain in a little more detail the ambit of paragraphs (b) and (f) in section 167(2). It is unnecessary to set out these paragraphs because it is accepted by the defendant that the claimant does fall within priority categories (b) and (f).
6. Paragraph 5.21 of the Code says in part:
“By virtue of section 167(6) a local housing authority is free to decide the structure of their allocation scheme (for example, whether it is points-based, date order or quota based, or any combination of these), what indicators to use, and what weighting to give to the categories listed in section 167(2), provided, of course, that reasonable preference is still given to those categories when allocating housing.”
7. Paragraph 5.22 specifically refers to the possibility of a quota scheme.
Factual Background
8. The factual background to the claimant's case is not in dispute.
9. In December 1996 he applied to the defendant for accommodation under Part 6 of the Act. The council accepted that he was a qualifying person and placed him on its housing register. At that time he was living with his mother at 51 Bates Crescent, London SW16. Following the death of his mother, the claimant was evicted by her landlord from that property because he was not able to succeed, a possession order having been made against his mother in 1997. So in August 2001 the claimant applied to the council for accommodation under Part 7 of the Act on the ground that he was homeless. He was advised that although he was homeless he did not have a priority need and accordingly the council's view was that it had no duty towards him under Part 7 of the Act. He sought a review of that decision. The council upheld its decision on review. There has been no appeal against this review decision, which was clearly correct.
10. In September the council's Housing Allocation Department interviewed the claimant to assess his change of circumstances. The claimant told the council that he was homeless, and that he had to rely on friends and family to accommodate him as and when that was possible, failing which he would sleep rough. He also explained that he could not secure accommodation in the private sector because he had no address and he did not have any income other than his benefits, and that meant that he would not be able to afford a deposit.
11. The claimant consulted solicitors, who wrote to the council on his behalf. On 8th October the council wrote to his solicitors saying, inter alia:
“The London Borough of Lambeth allocations policy does allow for different categories of applications, your client is on the mainstream list, which only prioritise in date order.
Mr Lindsay is currently on our list for consideration for a one bed property. Due to the heavy demand for this type of property the list is very long. If he were to consider changing his bedsize to a studio flat, the wait will be considerably shorter.
Your client has been registered since 12th December 1996. Unfortunately his homelessness is not taken into consideration on the mainstream list.”
12. The claimant's solicitors then requested an explanation from the council as to how it accorded preference in terms of section 167 in its allocations scheme, and said that in the absence of a satisfactory response judicial review proceedings would be commenced. No response was received, and so on 19th November application to apply for judicial review was made upon the basis that the claimant fell within paragraphs (b) and (f) in section 167(2), but the council's allocation scheme did not secure that he was given any reasonable preference.
13. Permission to apply for judicial review was granted on the papers on 7th December, and four days later, on 11th December, the council wrote a letter to the claimant's solicitors withdrawing the decision of 8th October, saying that the letter of 11th December was:
“… in complete substitution of our letter dated 8th October … The purpose of this is to clearly state the council's position in respect to your client's housing application under Part 6, Housing Act 1996.
Mr Lindsay's case worker, Miss V Whittle, completed his assessment on 8th October 2001. The allocation scheme includes various groups of applicant given differing levels of priority. Mr Lindsay has been assessed as a mainstream applicant in group D, and is listed for one bedroom properties. In the lists for each size and area in this group, applicants are in date order; your client's priority dates from 12th November 1996.
While the council's assessment places applicants in groups and property size ranges, once in the mainstream group an applicant takes into account his or her own needs and circumstances through choices made. Homelessness affects an applicant's priority group if he or she satisfies the priority need and other tests under Part 7. In other cases, the applicant is advised to take his or her circumstances into account in exercising their choice. If your client feels the need to find housing more quickly, I would strongly advise him to consider widening his choices to include a studio flat.”
14. An address is given where housing advice can be obtained.
15. The council's allocation policy, dated July 2000, states that among its aims and objectives is “to meet the council's statutory duties”....
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