The Queen (on the application of Lina Jakimaviciute) v Hammersmith and Fulham London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Tomlinson,Lord Justice Bean |
| Judgment Date | 06 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1438 |
| Docket Number | Case No: C1/2014/0125 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2014 |
[2014] EWCA Civ 1438
IN THE COURT OF APPEAL (CIVIL DIVISION)
IN THE MATTER OF AN APPLICATION
FOR JUDICIAL REVIEW
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Tomlinson
and
Lord Justice Bean
Case No: C1/2014/0125
Martin Westgate QC and Ben Chataway (instructed by Turpin & Miller Llp) for the Claimant
Christopher Baker and Clare Cullen (instructed by Legal Services Division, London Borough of Hammersmith and Fulham) for the Defendant
Hearing date: 21 October 2014
Introduction
This is an application for judicial review. Permission to apply was refused in the Administrative Court but was granted in the Court of Appeal by Sir Stanley Burnton, who directed that the application should be retained for hearing in this court instead of being returned to the Administrative Court. The case concerns the provisions of Part 6 of the Housing Act 1996, as amended in particular by the Localism Act 2011, governing the allocation of social housing by local housing authorities. Save where the context otherwise requires, references in this judgment to "the 1996 Act" are to the Act as so amended.
The claimant challenges the legality of the Housing Allocation Scheme adopted by Hammersmith and Fulham London Borough Council with effect from April 2013 ("the Scheme"). Specifically, she takes issue with paragraph 2.14(d) which provides that the following class of persons does not normally qualify for registration under the Scheme:
"Homeless applicants placed in long term suitable temporary accommodation under the main homelessness duty, unless the property does not meet the needs of the household or is about to be ended through no fault of the applicant. Long term temporary accommodation can include private sector homes let via the council or a housing association under a leasing arrangement, and non-secure tenancies on regeneration estates."
In 2011 the claimant applied to the Council under the homelessness provisions of Part 7 of the 1996 Act. The Council accepted a housing duty towards her under section 193(2) and placed her in long term suitable temporary accommodation with a private landlord. Pursuant to the housing allocation scheme then in force, she was also placed on the register for an allocation of permanent accommodation under Part 6 of the 1996 Act. When the new Scheme came into effect in April 2013, however, she lost her place on the register because she fell within the exclusion in paragraph 2.14(d). A subsequent change of circumstances led to her being registered but that complication can be left on one side for the time being.
The case turns on the relationship between the Council's power under section 160ZA(7) of the 1996 Act to decide what classes of persons are, or are not, qualifying persons and the duty under section 166A(3) to frame an allocation scheme so as to secure that reasonable preference is given to certain classes of people, including those who are owed a housing duty under section 193(2). The claimant contends in summary that the power to set the qualification criteria is subject to the duty to secure reasonable preference and that the exclusion in paragraph 2.14(d) is in breach of the reasonable preference duty. The Council contends in summary that the power to set the qualification criteria is entirely separate from the provisions relating to reasonable preference.
The legislative framework
The relevant provisions of Part 6 of the 1996 Act are to be found in sections 159, 160ZA, 166, 166A, 168 and 169.
Section 159 provides by subsection (1) that a local housing authority "shall comply with the provisions of this Part in allocating housing accommodation". Subsection (2) provides that an authority "allocate" housing accommodation when they select or nominate a person to be a secure or introductory tenant or nominate a person to be an assured tenant of a private registered provider of social housing or a registered social landlord.
Section 160ZA is headed "Allocation only to eligible and qualifying persons: England". Subsection (1) provides that an authority shall not allocate housing accommodation to a person from abroad who is "ineligible" by virtue of subsection ( 2) or (4). The ineligibility provisions are not in issue in this case. The section goes on, however, to deal with "qualifying persons":
"160ZA(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.
(8) The Secretary of State may by regulations –
(a) prescribe classes of persons who are, or are not, to be treated as qualifying persons by local housing authorities in England, and
(b) prescribe criteria that may not be used by local housing authorities in England in deciding what classes of persons are not qualifying persons."
The power of the Secretary of State to make regulations under subsection (8) has been exercised to date only to prevent authorities from using "local connection" as a criterion for qualification in the case of members or former members of the regular forces or persons connected with them.
Subsections (9)-(10) provide that if an authority decide that an applicant for housing accommodation is ineligible or is not a qualifying person, they shall notify the applicant in writing of their decision and the grounds for it.
Section 166 requires an authority to secure that advice and information is available free of charge to persons in their district about the right to make an application for an allocation of housing accommodation, and that an applicant is informed that he has the rights mentioned in section 166A(9) (see below). It also provides, in subsection (3), that every application for an allocation of housing accommodation "shall (if made in accordance with the procedural requirements of the authority's allocation scheme) be considered by the authority".
Section 166A is headed "Allocation in accordance with allocation scheme: England" and includes the following provisions:
"166A(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).
The scheme must be framed so as to give additional preference to a person with urgent housing needs who falls within one or more of paragraphs (a) to (e) and who … [is a member of the regular forces, etc.]"
Subsection (5) states that the scheme may contain provision for determining priorities in allocating housing to people within subsection (3) and that 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 a member of his household which affects his suitability to be a tenant, and (c) any local connection.
Subsection (7) provides that the Secretary of State may by regulations specify further descriptions of people to whom preference is to be given as mentioned in subsection (3), or amend or repeal any part of subsection (3). Subsection (8) provides that the Secretary of State may by regulations specify factors which a local housing authority in England must not take into account in allocating housing accommodation.
Subsection (9) provides that the scheme must be so framed as to secure that an applicant for an allocation of housing accommodation has the right (a) to request information about certain matters, including how his application is likely to be treated under the scheme, (b) to request the authority to inform him of any decision about the facts of his case which is likely to be, or has been, taken into account in considering whether to allocate housing accommodation to him, and (c) to request a review of a decision mentioned in...
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