The King on the application of Ms Patricia Helen Roman Montaño v The London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | Mr Jonathan Glasson |
| Judgment Date | 08 February 2024 |
| Neutral Citation | [2024] EWHC 249 (Admin) |
| Year | 2024 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2864/2023/AC-2023-LON-002356 |
[2024] EWHC 249 (Admin)
Mr Jonathan Glasson KC sitting as a Deputy Judge of the High Court
Case No: CO/2864/2023/AC-2023-LON-002356
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Matthew Ahluwalia (instructed by GT Stewart Solicitors) for the Claimant
Ms. Catherine Rowlands (instructed by London Borough of Lambeth Legal Services) for the Defendant
Hearing date: 12 th December 2023
Approved Judgment
This judgment was handed down remotely at 10.30 a.m. on 8 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Jonathan Glasson KC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT:
Mrs Patricia Montaño (“the Claimant”) seeks to challenge the ongoing failure of the London Borough of Lambeth (“the Defendant”) to make a decision in relation to a request made by the Claimant on 15 March 2023 to backdate the qualifying date of her housing register account. The Claimant alleges that the Defendant has a discretion to backdate the qualifying date of her housing register account to 15 September 2017. The Defendant denies that it has any such discretion under its “ Housing Allocation Scheme 2013” (“the Scheme”).
The Claimant's case is put on two alternative bases. The first is predicated on the basis that the Defendant has a discretion under the Scheme to backdate the registration date and the second is put on the basis that if, contrary to the Claimant's primary submission, the Defendant has no such discretion, then the policy is unlawful. Thus, the Claimant's Amended Detailed Facts and Grounds sets out five grounds of review:
(a) The failure to consider exercising the discretion to backdate the Claimant's registration date.
If there is no discretion within the Scheme then:
(b) The Scheme is unlawful and contrary to the Equality Act 2010.
(c) The Scheme is discriminatory contrary to Article 14 ECHR.
(d) The Scheme is irrational.
(e) The Scheme unlawfully fetters a public body's basic duty not to fetter its discretion.
The Claimant was granted permission to rely on her Amended Statement of Facts and Grounds (which had added the fifth ground referred to above) by Lang J on 6 October 2023 when she granted permission for judicial review. Lang J also gave the Claimant permission to rely on her Reply to the Defendant's Summary Grounds as well as the further witness evidence that the Claimant had filed with the Reply.
For the purposes of the hearing, I was presented with a bundle of documents and correspondence as well as a bundle of authorities. Both parties submitted skeleton arguments in advance of the hearing and made detailed oral submissions. I am grateful to counsel as well as those instructing them for their assistance.
For the reasons which I give below I have concluded that the Scheme does contain a discretion to backdate the registration date. That being so, and reflecting the agreement of the parties, I have not determined the alternate bases upon which the Claimant had argued her case and nor do I analyse the evidence that the Claimant submitted in support of grounds (b) – (e).
The judgment is divided into the following sections:
a) The factual background
b) The procedural history
c) The statutory framework and the Defendant's Scheme
d) The Claimant's evidence
e) Does the Defendant have a discretion to backdate the registration date?
f) The duty of candour
g) Disposal and relief
a) The factual background
The Claimant applied to join the Defendant's housing register in September 2017 after her third child, Patricia, was born. At that time the Claimant and her family were living in private rented accommodation. Mr Freddy Mamani, the father of the Claimant's children and the Claimant's former husband, was also living with the Claimant at that time. The application form was filled out by the Claimant, but the applicant was named as Mr Mamani. The Claimant says in her witness statement that “ [w]e thought it would be simpler if the application was in Freddy's name, as it would be easier to prove income if necessary”. The Claimant was named in the application, and she was the “ only person who logged in and used this account. Freddy doesn't even know the password and has never used it”. It was the Claimant who bid on properties using that account. The account had the reference number 24284232 (“the Old Account”). The priority band awarded under the Old Account was “Band D”.
In October 2022 the Claimant and her family were evicted from their private rented accommodation, after their landlord obtained possession pursuant to section 21 of the Housing Act 1988 (a so-called “no fault eviction”). The Claimant made a homelessness application to the Defendant. The family were initially placed in accommodation near Basildon in Essex. During this time the relationship between the Claimant and her husband broke down and they separated. The Claimant's husband left the household in November 2022.
On 14 February 2023 the Defendant determined that the Claimant was homeless and that it owed the Claimant the “main housing duty” under section 193 of the Housing Act 1996. The Defendant also provided her with a new housing register account in her own name with the following account number: 24321653 (“the New Account”). The Claimant's priority banding was updated to “Band C1” but the registration date for the New Account was recorded as 8 February 2023. The Claimant's household still includes her three children. There is no dispute that had the Old Account been in the Claimant's name then the registration date would have remained the same, i.e. 21 September 2017.
On 15 March 2023 the Claimant's solicitor wrote to the Defendant requesting the Defendant to exercise its discretion “ to back date her housing waiting list account to when she made a homeless application with her ex-partner on 21.09.17.” The Claimant's solicitor stated: “ [w]e ask that the council uses its discretion to backdate our client's account to 15.09.17. If the council fails to do so, then we submit that the council's behaviour would be irrational and discriminatory. To not award the requested backdate would be irrational as it means severe disadvantage can be experienced by families just because there has been relationship breakdown. It is noted that the same does not occur if the family household changes in other ways, such as death of an existing household member or birth of a new household member. Failing to backdate our client's account would also be indirect discrimination under S.19 Equality Act 2010. Single parents are particularly disadvantaged if they are not allowed to keep the start date from an account they shared with their ex-partner.”
No response was received to that request and on 17 April 2023 the Claimant's solicitor wrote again to the Defendant requesting it to exercise its discretion. No reply was received.
(b) The procedural history and preliminary issues raised at the outset of the hearing
On 25 April 2023 the Claimant's solicitors sent the Defendant a letter before claim for judicial review. It asked for a response to be provided by 9 May 2023. The letter was acknowledged by the Defendant on 25 April 2023, but no substantive response was sent. Accordingly on 16 May 2023 the Claimant's solicitors wrote to the Defendant indicating that if no response was received by 18 May 2023, then the Claimant would be advised to issue proceedings without further notice. Again, no response was received.
On 19 May 2023 the Claimant's solicitors wrote to the Defendant once more asking for a response. No reply was received. On 5 July 2023 the Claimant's solicitors wrote to the Defendant informing it that the Claimant had now received legal aid funding and asking the Defendant to respond to the request to backdate her registration date and to the pre-action letter.
No response was received and accordingly the Claimant issued judicial review proceedings on 1 August 2023.
On 9 August 2023 the Claimant's solicitors received a response from the Defendant to a request made under the Freedom of Information Act 2000. The Claimant had made that request on 5 July 2023. The reply stated:
“Request:
I am writing for the purpose of submitting an FOI in relation to the social housing waiting list.
Can the council please provide all policy, guidance and information regarding the process to be followed by housing officers when calculating the qualifying date (also known as registration date) for applicants housing waiting list accounts? In particular, this should also include situations where a person has been granted a housing waiting list account when a homeless duty has been accepted. If any part of the process of determining qualifying dates is automated, can we please be provided with the algorithm/calculation that the automated system uses.
Response
On Northgate, the Registration Date of an application is automatically set as the date when the applicant or officer creates the application on line.
The Registration Date is translated into the Qualifying Date on Home Connections.
There is no other information that can be provided”.
This response prompted the Claimant's legal team to amend the Grounds to include the fifth ground (unlawful fettering of discretion) on the basis that the response could be interpreted as suggesting that the automated registration date could not be changed under any circumstances.
The Defendant filed Summary Grounds on 23 August 2023. Inter alia, the Defendant asserted that “ [t]he scheme does not provide for any discretion in the registration date” (paragraph 16) and “ although there are various areas in which the...
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