R (Ahmad) v London Borough of Newham
| Jurisdiction | UK Non-devolved |
| Judge | BARONESS HALE OF RICHMOND,LORD HOPE OF CRAIGHEAD,LORD NEUBERGER OF ABBOTSBURY,LORD WALKER OF GESTINGTHORPE,LORD SCOTT OF FOSCOTE |
| Judgment Date | 04 March 2009 |
| Neutral Citation | [2009] UKHL 14 |
| Court | House of Lords |
| Date | 04 March 2009 |
[2009] UKHL 14
Appellate Committee
Lord Hope of Craighead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellants:
Andrew Arden QC
Christopher Baker
(Instructed by London Borough of Newham)
Respondent:
Jan Luba QC
Robert Latham
(Instructed by Edwards Duthie)
My Lords,
I have had the advantage of reading in draft the opinions of my noble and learned friends Baroness Hale of Richmond and Lord Neuberger of Abbotsbury. I am in full agreement with them and for the reasons they give I would allow the appeal and make the order that Lord Neuberger proposes.
My Lords,
I have had the advantage of reading in draft the illuminating opinions on this appeal that have been prepared by my noble and learned friends Baroness Hale of Richmond and Lord Neuberger of Abbotsbury and find myself fully persuaded by the reasons they have given for allowing this appeal and making the order which Lord Neuberger proposes.
I was for some time attracted by the submission, addressed to your Lordships by Mr Luba QC, counsel for the respondent, Mr Ahmad, that the appellant Council's section 167(1) scheme for determining priorities in allocating housing accommodation was, in one particular respect, irrational and therefore unlawful. Mr Luba's main criticism was that the scheme, having placed in the same priority band all those housing applicants who satisfied one or more of paragraphs (a) to (e) of section 167(2), made the selection of the person in that band to whom a dwelling that had become available would be allocated dependent on how long that person had been on the Council's waiting list, awaiting allocation of a suitable dwelling. This "time waiting" criterion, as the determinative factor in the selection from among those in the section 167(2) priority band of the person to whom the dwelling that had become available would be allocated, depends not at all on the relative housing needs of those in the priority band. The dwelling would simply be offered to the person who had been longest on the waiting list. This was Mr Luba's main reason for submitting that the Council's section 167(1) scheme was irrational and unlawful.
It would be impossible, in my opinion, to challenge the rationality of including waiting time as one of the factors properly to be taken into account by a housing authority when deciding to whom an available dwelling should be allocated. But why should waiting time be the determinative factor?Why should apparently greater needs of one person in the priority band be subordinated to apparently lesser needs of another person in the band simply because the latter had been longer on the waiting list?This was the question that Mr Luba's submission posed for your Lordships. The question is, I think, best answered by posing a further question. What is the alternative?The formulation of sub-bands within the section 167(2) priority band, with the sub-bands being placed in order of priority, has been suggested as a preferable alternative. A points system, with points allocated for various types of special need and priority accorded to the person having the highest number of points, has been suggested as another. But both these suggested alternatives have their drawbacks.
No matter how many priority sub-bands were to be formulated, and the formulations would be far from easy and likely to be contentious, there must always be some basis on which to distinguish between those within the same sub-band who are in competition for the same dwelling. To allow the choice to depend upon the judgment of a Council official, or a committee of officials, no matter how experienced and well trained he, she or they might be, would lack transparency and be likely to lead to a plethora of costly litigation based on allegations of favouritism or discrimination. The waiting time criterion constitutes a basis of selection that has the merit of certainty, the absence of any subjective evaluation and that, therefore, avoids these drawbacks.
A points system, too, would be open to much the same objections, leading to endless challenges, based on comparisons between the points awarded to the complainant and the points awarded to others in the same priority band.
The unfortunate fact of the matter is that where a Council is faced, as this appellant Council is faced, with a demand for Council housing that greatly exceeds the available housing stock, there is no allocation system that can be devised to avoid hard cases such as, undoubtedly, Mr Ahmad and his family present. The section 167(1) scheme devised by the appellant Council complies with the statutory requirements of the 1996 Act, as amended, and, insofar as its provisions for the allocation of housing to those in the section 167(2) priority band are concerned, cannot, for the reasons given by my noble and learned friends, which I find cogent and compelling, be described as irrational or unlawful.
My Lords,
I have had the advantage of reading in draft the opinions of my noble and learned friends Baroness Hale of Richmond and Lord Neuberger of Abbotsbury. I am in full agreement with them and for the reasons which they give I too would allow the appeal and make the order that Lord Neuberger proposes.
My Lords,
In these proceedings, the policy of the London Borough of Newham for allocating the social housing available to them is challenged on two main grounds. First, and most important, it is said that the council are required to have a policy which not only affords people in the groups listed in section 167(2) of the Housing Act 1996 reasonable preference over other groups of people, but also determines priority between the people in those groups in accordance with the relative gravity of their individual needs. The specific problem is how multiple needs within the same household should be addressed. Second, and less important, it is said that the policy of allocating up to five per cent of the properties which are advertised under the council's choice based lettings scheme to existing tenants, who wish to transfer to another property of the same size, fails to give reasonable preference to the priority groups listed in section 167(2).
My noble and learned friend Lord Neuberger of Abbotsbury and I are in complete agreement about the answers to those questions. We have therefore agreed an allocation policy between us. He has been allocated the lion's share of the work, giving a detailed account of the legislation, the allocation policy adopted by Newham, and its application in this case. He has also been allocated the task of supplying our answer to the first and most important of the two challenges. I have been allocated the much simpler tasks of adding emphasis to the main features of our answer to the first challenge, because it is the more important, and of supplying our answer to the second. We are, of course, agreed that the council's appeal should be allowed and the claim for judicial review dismissed in so far as it challenged the legality of their allocation scheme.
First, it is important to bear in mind that this is a challenge to the council's allocation policy, not a claim that Mr Ahmad should have been given a house. The principal relief sought was a declaration that the allocation scheme was unlawful; parasitic upon that were claims to quash the decision refusing Mr Ahmad's application for re-housing, for a declaration that the council had failed to assess his application according to law, and for an order directing them to do so. However, the principal relief granted by the Deputy Judge was a declaration that "the case shall be reconsidered according to law and in particular the requirement of a multiple needs policy that accords with the law set out in this judgment". In the judgment he made three detailed criticisms (paras 63 to 65) of the policy which gave additional preference on the grounds of multiple need and concluded (para 66) that "when the claimant's case has to be reconsidered the existing form for multiple needs will need some adjustments in the light of the observations in this judgment". The present policy was deficient, "however difficult it is for the defendant council to formulate this decision and without being over-rigid with the application of what is a judgment of need" (emphasis supplied). This strongly suggests that the Deputy Judge was approaching the problem from the point of view of the proper assessment of Mr Ahmad and his needs (which the council conceded had not been done) and not from the point of view of the overall legality of a policy which would have to apply to everyone who applied to the council for housing accommodation.
Secondly, the relief claimed is important because no-one suggests that Mr Ahmad has a right to a house. At most, he has a right to have his application for a house properly considered in accordance with a lawful allocation policy. Part VI of the Housing Act 1996 gives no-one a right to a house. This is not surprising as local housing authorities have no general duty to provide housing accommodation. They have a duty periodically to review housing needs in their area (Housing Act 1985, s 8). They have power to provide housing accommodation by building or acquiring it (1985 Act, s 9). They also have power to nominate prospective tenants to registered social landlords or to others. They are required to have an allocation policy which applies to selecting tenants for their own housing or nominating people for housing held by others (Housing Act 1996, s...
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