The King on the application of Seyyed Mohammad Mahdi Jaberi v City of Westminster
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 04 May 2023 |
| Neutral Citation | [2023] EWHC 1045 (Admin) |
| Docket Number | Case No: CO/2044/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1045 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/2044/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lindsay Johnson (instructed by Hopkin Murray Beskine Solicitors) for the Claimant
Ian Peacock (instructed by Bi-Borough Legal Services) for the Defendant
Hearing dates: 21 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 4 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
This claim for judicial review concerns both the homelessness provisions of Part VII of the Housing Act 1996 (‘the 1996 Act’) and the rules governing the allocation of local authority housing contained in Part VI of that Act.
Permission to bring this claim was granted by Margaret Obi, sitting as a Deputy High Court Judge, at an oral hearing on 10 November 2022, to pursue three grounds of judicial review, namely:
“a. The defendant is in breach of its duty under section 193(2) to provide the claimant with suitable accommodation.
b. The defendant's refusal to place the claimant in the medical Priority Group, and/or section 6.1.2 of the policy which prevents a homeless applicant from entering the medical priority group, denies him a reasonable preference to which he is entitled by statute and is therefore unlawful as both a breach of statutory duty and/or as being unreasonable in the Wednesbury sense.
c. The defendant's failure to provide sufficient information to permit the applicant to determine whether housing accommodation appropriate to his needs is likely to be available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him is a breach of the duty under section 166A(9)(a)(ii).”
B. The law
Part VI of the Housing Act 1996
Part VI of the 1996 Act is concerned with the process for distributing (or to use the words of the statute, “allocating”) tenancies of social housing. Part VI does not impose obligations on local authorities to secure accommodation for applicants: it focuses on the procedure for allocating the available housing stock. There is a duty to have and to operate a lawful allocation policy: R (Ahmad) v Newham London Borough Council [2009] UKHL 14, [2009] PTSR 632, Baroness Hale, [13]. In view of the severe shortage of social housing, it is possible for an applicant to remain on the housing register for life without ever succeeding in a bid for accommodation.
Section 159 of the 1996 Act provides, so far as relevant:
“(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.
…
(7) Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate.”
Section 160ZA provides for accommodation to be allocated only to eligible and qualifying persons. Eligibility depends on an applicant's immigration status. The local housing authority has a discretion to decide what classes of persons are, or are not, qualifying persons.
The relevant subsections of s.166A provide:
“ Allocation in accordance with allocation scheme: England
(1) Every local housing authority in England 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) The scheme must include a statement of the authority's policy on offering people who are to be allocated housing accommodation –
(a) a choice of housing accommodation; or
(b) the opportunity to express preferences about the housing accommodation to be allocated to them.
(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 grounds relating to 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); …
(6) Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation —
(a) to a person who makes a specific application for that accommodation;
(b) to persons of a particular description (whether or not they are within subsection (3)).
…
(9) The scheme must be framed so as to secure that an applicant for an allocation of housing accommodation—
(a) has the right to request such general information as will enable him to assess—
(i) how his application is likely to be treated under the scheme (including in particular whether he is likely to be regarded as a member of a group of people who are to be given preference by virtue of subsection (3)); and
(ii) whether housing accommodation appropriate to his needs is likely to be made available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him;…
(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.
..
(14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.”
Part VII of the Housing Act 1996
The duties of a local housing authority in England towards those who face the immediate problem of homelessness are found in Part VII of the 1996 Act. This Part contains a graduated series of provisions which, in differing circumstances, impose obligations on a local housing authority to secure temporary accommodation for an applicant. The relevant duty in this case, which is contained in s.193(2) and known as the ‘main housing duty’, is “ the highest duty which is owed under Part VII”: Birmingham City Council v Ali [2009] UKHL 36, [2009] 1 WLR 1506, Baroness Hale, [19].
Section 193 provides, so far as relevant:
“(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section …”
Section 206(1) provides:
“A local housing authority may discharge their housing functions under this Part only in the following ways –
(a) by securing that suitable accommodation provided by them is available,
(b) by securing that he obtains suitable accommodation from some other person, or
(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person.”
In R (Elkundi) v Birmingham City Council [2022] EWCA Civ 601, [2022] QB 604 Lewis LJ (with whom Peter Jackson and Underhill LJJ agreed) held:
“77. Section 193(2) defines the content of the duty. The local authority ‘shall secure that accommodation is available’ for occupation. ‘Shall’ in this context means ‘must’. ‘Secure’ in this context means that the housing authority is responsible for ensuring that accommodation ‘is available for occupation’. ‘Is available’ means that suitable accommodation is to be available from the time when the duty is owed, that is from the time when the local housing authority is satisfied that the person meets the criteria so that the duty is owed to him. The natural reading of those words, read in context, is that, once the duty is owed, the obligation on the housing authority is to ensure that accommodation is available for that person. In that sense, the duty is immediate, arising when the duty is owed. It is non-deferrable and unqualified, in that the duty is to secure that accommodation ‘is available for occupation’, not that accommodation will become available within a reasonable period of time.
…
81. For those reasons, I consider that the Judge was correct to hold that section 193(2) of the 1996 Act imposed an immediate, non-deferrable and unqualified duty...
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