R Zaida Mallon Montero v London Borough of Lewisham
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 21 May 2021 |
| Neutral Citation | [2021] EWHC 1359 (Admin) |
| Docket Number | Case No: CO/3600/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1359 (Admin)
BEFORE THE HONOURABLE Mr Justice Henshaw
Case No: CO/3600/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Chataway (instructed by GT Stewart Solicitors & Advocates) for the Claimant
Matt Hutchings QC (instructed by London Borough of Lewisham) for the Defendant
Hearing date: 27 April 2021 Draft judgment circulated to the parties: 13 May 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| (A) INTRODUCTION | 2 |
| (B) LEGISLATIVE FRAMEWORK | 3 |
| (C) LEWISHAM'S ALLOCATION SCHEME | 12 |
| (D) THE CLAIMANT'S SITUATION AND APPLICATION | 18 |
| (E) CASE LAW | 19 |
| (F) DISCUSSION: ISSUE 1 (REASONABLE PREFERENCE) | 33 |
| (G) DISCUSSION: ISSUE 2 (THE SIX MONTH RULE) | 38 |
| (H) CONCLUSIONS | 40 |
(A) INTRODUCTION
In this claim for judicial review, the Claimant challenges (i) the Defendant's alleged continuing failure to have in place a housing allocation scheme that complies with section 166A(3) of the Housing Act 1996 (“ the Act”), and (ii) the Defendant's decisions refusing to admit the Claimant onto its housing register.
Part VI of the Act deals with the allocation of permanent social housing. Section 166A requires every local housing authority to have in place an allocation scheme which is framed so as to secure that a reasonable preference is given to certain people, including people occupying overcrowded accommodation. The Claimant lives in Lewisham and has applied for social housing on the basis that she and her family are overcrowded. Her application has been refused because the Defendant's scheme provides that, subject to limited exceptions, applicants will only qualify for an allocation if they have resided in the borough for at least 5 years (“ the past residence rule”).
The following issues arise:
i) whether it is lawful for the Defendant to disqualify the Claimant on this basis, notwithstanding their duty to give a reasonable preference: the Claimant's case, relying on R(HA) v Ealing LBC [2015] EWHC 2375 (Admin), is that it is unlawful for a disqualification criterion pursuant to section 160ZA of the Act (considered later) to exclude a sub-group of persons falling within the reasonable preference provisions of section 166A(3); and
ii) the proper interpretation and effect of the past residence rule itself, which includes the statement that “your application will be disqualified for a period of 6 months”: the Claimant contends that the disqualification is thus for a limited period of 6 months only, whereas the Defendant argues that applicants remain liable to be disqualified until they have built up the required 5 years of residence.
Permission to proceed on issue (i) was granted on the papers by Heather Williams QC, and permission to amend to add issue (ii) was granted on the papers by Lang J.
For the reasons set out below, I have come to the conclusion that neither ground of challenge succeeds. The legislation does not prohibit a disqualification criterion that affects some persons falling within a reasonable preference category, provided that viewed as a whole the scheme does give reasonable preference to that category of persons. Further, the only sensible meaning of the past residence rule in this case is that the disqualification for which it provides will continue to apply to any future applications, made at least six months after any previous application, until the applicant has satisfied the 5-year requirement.
(B) LEGISLATIVE FRAMEWORK
Section 159 of Part VI of the Act provides that:
“(1) A local housing authority shall comply with the provisions of this Part in allocating housing accommodation.
(2) For the purposes of this Part a local housing authority allocate housing accommodation when they—
(a) select a person to be a secure or introductory tenant of housing accommodation held by them,
(b) nominate a person to be a secure or introductory tenant of housing accommodation held by another person, or
(c) nominate a person to be an assured tenant of housing accommodation held by a private registered provider of social housing or a registered social landlord.”
Section 160ZA of the Act was added by Localism Act 2011. It is headed “ Allocation only to eligible and qualifying persons: England”. By section 160ZA(1), a local housing authority shall not allocate housing accommodation to persons from abroad who are “ ineligible”, as defined by subsections (2) to (4). Subsections (6) and (7) then provide as follows:
“(6) Except as provided by subsection (1), a person may be allocated housing accommodation by a local housing authority in England (whether on his application or otherwise) if that person—
(a) is a qualifying person within the meaning of subsection (7), or
(b) is one of two or more persons who apply for accommodation jointly, and one or more of the other persons is a qualifying person within the meaning of subsection (7).
(7) Subject to subsections (2) and (4) and any regulations under subsection (8), a local housing authority may decide what classes of persons are, or are not, qualifying persons.”
Section 166A is headed “Allocation in accordance with allocation scheme: England” and provides, so far as relevant:
“(1) Every local housing authority in England must 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 taken.
…
(3) As regards priorities, the scheme shall, subject to subsection (4), 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 any grounds relating to a disability); and
(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 to others)
The scheme may also be framed so as to give additional preference to particular descriptions of people within one or more of paragraphs (a) to (e) (being descriptions of people with urgent housing needs).
…
(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and 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 of 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 person and the authority's district.
…
(9) The scheme must be framed so as to secure that an applicant for an allocation of housing accommodation—
…
(c) has the right to request a review of a decision mentioned in paragraph (b), or in section 160ZA(9), and to be informed of the decision on the review and the grounds for it.
…
(11) 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.”
The provisions to which section 166A thus cross-refers include section 190 (duties to persons becoming homeless intentionally); section 193 (duty to persons with priority need who are not homeless intentionally, which includes what is often referred to as the “main housing duty” under section 193(2)); section 195 (duties in cases of threatened homelessness); and section 199, which defines “local connection” by reference to the following basic test:
“(1) A person has a local connection with the district of a local housing authority if he has a connection with it—
(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice,
(b) because he is employed there,
(c) because of family associations, or
(d) because of special circumstances.”
Section 169(1) of the Act provides that in the exercise of their functions under Part VI, local housing authorities shall have regard to such guidance as may from time to time be given by the Secretary of State. The main guidance for English authorities is “Allocation of accommodation: guidance for local housing authorities in England”, first issued in June 2012 and last updated in January 2021. It includes the following passages relevant to the present case:
[Under the heading “Qualification” in the chapter on “Eligibility and qualification”]
“3.29 In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in s.166A(3) to give overall priority for an allocation to people in the reasonable preference categories.
3.30 Housing authorities should avoid setting criteria which disqualify groups of people whose members are likely to be accorded reasonable preference for social housing, for example on medical or welfare grounds. However, authorities may wish to adopt criteria which would disqualify individuals who satisfy the reasonable preference requirements. This could be the...
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