L seeks judicial review in respect of the carrying out by the defendant, the London Borough of Lambeth, of their duties under Part VI of the Housing Act 1996 (“the Act”). L’s daughter now aged 11, is also a claimant, suing by her mother as litigation friend, but for convenience I will refer to L alone as ‘the claimant’.
As finally framed, the claimant’s contentions are:
(1) the defendant’s allocation policy adopted in July 2000, which constitutes the scheme required by section 167(1) of the Act for determining priorities in allocating housing accommodation, is not framed so as to secure the statutory preferences required by section 167(2);
(2) the defendant has, at least since September 2000, allocated housing accommodation otherwise than in accordance with that scheme, contrary to section 167(8) of the Act; and
(3) even assuming the defendant’s policy to be lawful, the defendant has not applied that policy correctly or at all as regards the claimant and her daughter, with the result that they have not been accorded the priority to which they would have been entitled in accordance with the defendant’s policy.
The claimant’s case is principally supported by her own witness statement of 30 March 2001, which details her attempts to secure permanent accommodation for herself and her daughter since January 1998 when they were placed by the defendant in temporary accommodation in a hostel at Tooting Bec Gardens. The claimant’s evidence was answered initially by a witness statement by Mr David Fowler, the Housing Needs Manager of the defendant, dated 18 July 2001, who explained the defendant’s housing allocation policy and the claimant’s position under that policy.
In the course of argument during the hearing, I asked certain questions to enable me to understand the mechanics of the policy. In answer to those questions Mr Fowler swore a second witness statement dated 7 September 2001. That statement, although no doubt intended to be helpful, went somewhat further than the points I had in mind, and “raised more questions than it answers”, to use the words of Mr Jonathan Manning, who has conducted the claimant’s case throughout with great skill and determination. The problem with Mr Fowler’s second witness statement was twofold. First, it appeared to describe a housing policy which operated differently from that indicated in the published scheme, and not entirely consistently with what had been said in Mr Fowler’s first witness statement. Secondly, Mr Fowler made certain statements about the way the claimant’s case had been treated which left the underlying facts of this case in an unsatisfactory state. To resolve this latter problem, it appeared to me necessary to secure the disclosure to the claimant of the files dealing with her case of both the Housing Department and the Social Security Department of the defendant, about which difficulties had earlier been encountered. The hearing was adjourned for that to be done.
At the resumed hearing, after Mr Manning had taken the court in detail through the whole history of the matter, as revealed by the newly disclosed files, Mrs Jane Oldham, who has conducted the defendant’s case with propriety, conceded on behalf of the defendant that the assessment of the claimant’s housing needs in this case had not been carried out in accordance with the defendant’s allocation policy. She undertook to the Court that the defendant would reconsider the claimant’s case with a view to according the claimant the priority to which she is entitled under that policy. The defendant thereby effectively conceded claim (3) of the three heads of claim set out above.
Since the reassessment of the claimant’s housing position might result in her being satisfactorily rehoused, the question then arose as to whether it was necessary for the Court to give judgment on heads (1) and (2). Both parties urged me to do so. For the claimant it was submitted that a reassessment of the claimant’s position would take some time, and the outcome was still uncertain; whether the policy by reference to which that reassessment was to be made was, or was not, unlawful was still a live issue which should be decided. For the defendant it was submitted that it was essential for it to know whether or not its policy was lawful, and the matter was equally important to other local authorities who were introducing similar schemes. Since the matter has been very fully argued, and is a matter of public interest (see Richards J in R v Islington LBC ex parte Reilly and Mannix 31 HLR 651 at p. 662) I will deal in this judgment with issues (1) and (2). Since, however, issue (3) has been conceded, I need only refer to the facts of the instant case to the extent necessary to put issues (1) and (2) into context. I have given any necessary permission to amend the claim form so as to secure that the relevant issues are properly before the court.
Brief factual background
Very briefly, in this case the claimant and her daughter have been living in a single room at the defendant’s hostel in Tooting Bec Gardens since January 1998. They were originally housed there, on a temporary basis, following the claimant’s application for assistance as a homeless person under Part VII of the Act. The claimant has a back injury which has prevented her from working since 1995. She also has a history of depression and psychiatric difficulties attributable, so it appears, partly to her housing situation.
On two occasions, in February and September 1998, the defendant made offers of accommodation to the claimant, but in both cases the claimant rejected the accommodation in question on the basis that it was unsuitable for herself and her daughter. I do not, for present purposes, have to decide whether the claimant was acting unreasonably or not in refusing those offers of accommodation, but the defendant’s Housing Department decided that they had thereby discharged their duty towards the claimant and made no further offers of accommodation. In November 1998, the defendant served a notice to quit on the claimant in respect of the hostel accommodation at Tooting Bec Gardens, whereupon the claimant says she suffered a breakdown and took an overdose of pills.
On 17 November 1998, the claimant presented herself at the defendant’s Social Services Department requesting that her daughter, then aged 8, be taken into care. The Social Services Department identified the daughter as a child in need, and it was eventually agreed with the Housing Department that the claimant would be placed on the housing register in the “social services quota” – which is the quota now part of “group F” for the purposes of the allocation policy under challenge. It was agreed that in the meantime the claimant and her daughter could stay at Tooting Bec Gardens until permanent accommodation could be found. The claimant assumed, rightly or wrongly, that this would occur fairly quickly because the whole object of the exercise was to avoid a situation where the daughter had to be taken into care.
In fact nothing happened, apparently because of misunderstandings in both the Housing and Social Services Departments. After a complaint (which was not in the event upheld) to the Local Government Ombudsman in the summer of 1999 about this and other matters, the Social Services Department of the defendant agreed, in a letter to the Local Government Ombudsman dated 10 September 1999, to reassess the family’s needs. The assessment was not in fact completed until 15 December 1999. That assessment found, notably, that the accommodation in question was, to put it mildly, extremely unsatisfactory and was having a severe adverse effect on the claimant’s mental state and her daughter’s development. The principal conclusion was that the claimant and her daughter:
“simply require alternative, more suitable accommodation. It is academic after three years in this hostel whether their current problems are a consequence of their housing or other factors, for the housing situation has now come to embody and represent all this family’s difficulties. It is therefore not possible to separate out whether M would have become an introverted child anyway, whether L has always had a tendency towards depression, whether M would have picked up skin conditions at school and so on. Presently, their housing situation is so utterly overwhelming and has been a problem of such long-standing that the only thing that will make any real difference to their lives is a change of accommodation.”
On 22 January 2001 the Social Services Team Manager made the following recommendation on the basis of that assessment:
“Permanent housing to be secured for this family asap”
Unfortunately, once again no steps were taken by the defendant to act on this recommendation and the claimant and her daughter remained, and as far as I know, still remain, in their single room in Tooting Bec Gardens where they have now been for nearly four years.
If I may say so, on the basis of the evidence before the Court, Mrs Oldham on behalf of the defendant was quite right to concede that the claimant’s case had not been correctly handled: the evidence reveals a disturbing failure on the part of the defendant’s services, particularly by the Housing Department, over the past three years at least, to respond to the needs of this family as identified by the Social Services Department.
Part VI of the Housing Act 1996
Under section 159 of the Act:
“(1) A local housing authority shall comply with the provisions of this Part in allocating housing accommodation.
...
(7) Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate.”
Pursuant to sections 161 to 163 of the Act, a local housing authority shall establish a housing register of persons qualifying for the allocation of housing accommodation. Housing is then to be allocated in accordance with a scheme complying with section 167. Section 167, as amended by the Allocation of Housing (Reasonable and Additional Preference) Regulations 1997, SI 1997 no. 1902 (“the 1997 Regulations”), reads:
“167 (1) Every local housing authority 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) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to—
(a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions,
(b) people occupying housing accommodation which is temporary or occupied on insecure terms,
(c) families with dependent children,
(d) households consisting of or including someone who is expecting a child,
(e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and
(f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation.
The scheme shall also be framed so as to secure that additional preference is given to households within paragraph (e) ... who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future.
...
(6) Subject to the above provisions ... the authority may decide on what principles the scheme is to be framed.
(7) Before adopting an allocation scheme, or making an alteration to their scheme reflecting a major change of policy, a local housing authority shall—
(a) send a copy of the draft scheme, or proposed alteration, to every registered social landlord with which they have nomination arrangements (see section 159(4), and
(b) afford those persons a reasonable opportunity to comment on the proposals.
(8) A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme.”
The 1997 Regulations further add various categories of homeless persons falling under Part VII of the Act as people to whom reasonable preference is to be given in an allocation scheme.
Section 168 of the Act provides:
“168 (1) A local housing authority shall publish a summary of their allocation scheme and provide a copy of the summary free of charge to any member of the public who asks for one.
(2) The authority shall make the scheme available for inspection at their principal office and shall provide a copy of the scheme, on payment of a reasonable fee, to any member of the public who asks for one.
(3) When the authority make an alteration to their scheme reflecting a major change of policy, they shall within a reasonable period of time notify everyone on their housing register, explaining in general terms the effect of the change.”
In the present case it is common ground that the claimant falls into all the categories (a) to (f) set out in section 167(2), except (d) (pregnant women). It is also accepted that the claimant is entitled to the additional preference required by section 167(2)(e) and the last sentence of that sub-section, since her household consists of or includes someone with a particular need for settled accommodation on medical or welfare grounds who cannot reasonably be expected to find accommodation for themselves in the foreseeable future. The claimant relies on both medical and welfare grounds. The defendant concedes at least welfare grounds, if not medical grounds.
The Ministerial guidance
Under section 169 of the Act, local housing authorities shall have regard to guidance given from time to time by the Secretary of State. The following extracts from the guidance published by the Secretary of State in July 1997 are relevant:
“What does reasonable preference mean?
5.5. The concept of reasonable preference has been used to articulate how authorities should prioritise different indicators of need ever since the term appeared in s.51 of the Housing Act 1935. Its use in the 1996 Act represents a continuation of the existing principles of housing allocation. It means that authorities should give due weight to the factors listed in s.167(2), but it does not restrict authorities to taking only such factors into account. Authorities could add other factors of their own, such as housing key workers coming into the area, whose presence is essential for economic growth. However, authorities should not allow their own secondary criteria to dominate their allocations scheme at the expense of factors in the statutory list.
...
5.7. It is for each authority to consider how to reflect the categories set out in s.167(2) in the allocation scheme which they devise... There is no requirement for authorities to give equal weight to each of the factors listed in s.167(2). Generally, authorities will wish to ensure that their allocation schemes give greater preference to the more severe cases of need, whether manifested singly or through a spread of indicators... Each authority should have arrangements for determining priority in allocation between two households with similar levels of need. It would be quite legitimate to employ some indicator that reflects the time spent waiting at a particular level of need. Whatever indicators are used, they should be set out clearly in the allocation scheme.
5.8. The flexibility inherent in the provisions of s.167 means that an authority should not operate on a purely formulaic basis. Authorities must behave rationally, taking into account all considerations relevant to housing and social needs, and ignoring irrelevant factors. It would be open to an authority to establish, as part of their allocation scheme, a procedure for dealing with special cases on an exceptional basis. ...
What does “additional preference” mean?
5.9. In order to secure that “additional preference” is given, an allocation scheme would have to ensure that proper priority is accorded to a person with a particular need for settled accommodation on medical or welfare grounds who cannot reasonably be expected to find accommodation for him/herself in the future.
5.10. The provision is aimed at individuals who are particularly vulnerable, for example as a result of old age, physical or mental illness, and/or because of a learning or physical disability. These are people who could live independently with the necessary support, but who could not be expected to secure accommodation on their own initiative. The provision does not require authorities to allocate the first available property of any sort in such cases, but it does assume that people meeting this description will have first call on suitable vacancies.
...
What discretion do local authorities have in devising their allocations schemes?
5.21. By virtue of s.167(6) a local housing authority is free to decide the structure of their allocations schemes (for example, whether it is points-based, date order or quota based, or any combination of these), what indicators to use, and what weighting to give to the categories when allocating housing. ...
5.22. Many authorities have in the past made arrangements that effectively set aside a quota of anticipated allocations for groups with particular characteristics, and in some cases allocate the accommodation on the basis of referrals from social services departments, welfare bodies or specialised agencies dealing with rough sleepers. Establishing such quotas can form part of an authority’s strategy to integrate the provision of housing with other social policies, for example as part of a care in the community package, or to enable individuals to move on from a hostel providing temporary accommodation. It is inherent in the provision of s.167 that authorities retain this discretion, provided that the persons who are subject to such arrangements fall within one (or more) of the categories of “reasonable preference” set out in subsection (2) of s.167.”
The Defendant’s allocation policy as published in July 2000
The defendant, which has responsibility for a relatively deprived urban area, has approximately 23,000 applicants registered for housing, of which about 14,000 are Part VI cases. The numbers of available lettings (about 2,200 annually) have fallen by some 50% over the past five years. As will be seen, the pressure on the housing register from homeless persons has been steadily increasing. In these circumstances, the defendant faces evident difficulties in establishing an appropriate allocations policy, attempting as it is to meet infinite demand from finite resources. Shorn of detail, the way in which the defendant’s allocation policy, as published in July 2000, works is as follows.
At the first stage, the defendant will place each applicant for housing in one of seven allocation groups:
Group A — right to return (mainly existing tenants making temporary decants who have a right to return to their former property).
Group B — emergencies (medical reasons, serious threat of violence/harassment, statutory overcrowding, “to avoid serious loss to the council”, or to comply with a court order).
Group C — supply transfers (tenants transferring under the transfer incentive scheme, decants where an already occupied property is being redeveloped or demolished, recall of short-life properties, major repairs transfers, and service occupiers employed by the defendant).
Group D — mainstream allocation (everyone on the housing register not in another group).
Group E — homeless households (mainly those who are unintentionally homeless or threatened with homelessness).
Group F — referrals (this group includes environmental health referrals; social services referrals; referrals by certain womens’ aid organisations; and referrals by certain specialist voluntary organisations managing supported housing).
Group G — HOMES nominations (from other social landlords via the Housing Organisations’ Mobility and Exchange Service).
In the present case, much argument has centred on groups B and F. Group B is described in the allocation policy in the following terms:
“Group B – emergencies
A case will be considered for this group if the move is required for one of the following reasons:
- for medical reasons defined below
- to avoid a serious threat of violence/harassment to a Lambeth council tenant, and where management action against the perpetrator is not sufficient to resolve the situation
- to alleviate statutory overcrowding (as defined by Part X, Housing Act 1985) of a Lambeth council tenant
- to avoid serious loss to the council
- to comply with a court order or ombudsman instruction of major importance
Medical priority
The Council’s medical adviser makes a judgment based on the effect an applicant’s existing accommodation has on their medical condition, or that of a household member.
That judgment should not have regard to the council’s ability to meet the housing needs of the cases prioritised. An urgent medical case is:
- a household in which one or more members has a serious, possibly life-threatening illness or disability and whose housing circumstances are, in the opinion of the council’s Medical Adviser, affecting their health very severely
or
- a person about to be discharged from hospital, and who will be priority, non-intentionally homeless if not housed by the council
Statutory overcrowding
If the total number of individuals occupying a property exceeds the permitted maximum defined in Part X, Housing Act 1985, the council has a statutory duty to offer the household a transfer.
...”
Group F is described in the policy in the following terms:
“Group F – referrals
Referrals are made within guidelines agreed between Lambeth Housing and accredited referral agencies, including Lambeth Social Services and a number of voluntary agencies providing womens’ aid and special needs hostel accommodation. Annual referral quotas are agreed.
Environmental Health referrals
Applicants served by the council’s environmental health officers with an unfitness notice, overcrowding direction or closing or demolition order are also placed in this group.
Social Services referrals
Lambeth Social Services may refer those who qualify to join the housing register, and council tenants, to be placed in this group.
Social Services is normally expected to provide appropriate support to help the client take advantage of any subsequent tenancy.
Three categories of households owed duties by the council under the relevant Social Services legislation, and which qualify under the rules on pages 8 (transfer list) and 9 (housing register) can be referred:
- Young people aged 16 or over leaving care, ready for independent living (persons under 18 cannot be granted a tenancy)
- Family cases:
- preventing family breakdown
- to facilitate discharge of children under 18 from care to their own or substitute families (including long-term foster parents)
- lone parents: for unsupported single parents inadequately housed or in temporary supervised accommodation
- foster parents returning to council housing: see page 28
- Health-related cases:
- disability: those living in accommodation that is unsuitable because of their disability, or who are ready to ‘move on’ from supported accommodation
- mental health: those recovering from or suffering mental illness who need housing to prevent family breakdown or admission to hospital or residential care; or those ready to ‘move on’ from supported accommodation
- learning difficulties: those ready for independent living
- elderly: to facilitate discharge from or prevent admission to a Lambeth elderly persons home
Council tenants referred must be living in housing circumstances that are exacerbating their social situation; the provision of alternative accommodation must clearly be seen to assist in the short- or long-term resolution of these problems.
Social Services makes the decision to give referral status; as long as the applicant meets the above criteria, the senior housing register officer or neighbourhood or TMO manager should authorise the case.
Womens’ Aid
Any woman, regardless of existing tenure or whether she has a connection with the borough, can be referred, if she is:
- referred by a Women’s Aid organisation that has referral arrangements with Lambeth Housing
and
- not accepted by the council as priority homeless under Part VII, Housing Act 1996
...
Access
The Access scheme covers Lambeth Housing’s referral arrangements with specialist voluntary organisations managing supported housing.
Any single person who is not a council tenant, regardless of whether they have a connection with the borough, can be referred if they are –
- referred by a voluntary sector agency that has an Access referral arrangement with the council
and
- living in supported housing
and
- not assessed as in priority need under Part VII of the Housing Act 1996”
At the same time as the initial placing of an applicant in a group, the defendant will also assess the size of property to be offered, in accordance with criteria set out in the policy. Under the “self assessment” procedure, applicants other than those in groups B, E, F and G may indicate a geographical preference among the defendant’s 34 allocation areas and also their preference for property type and characteristics (e.g. flat or house, any specific estate wanted, floor level, lift, concierge, central heating, etc). Applicants in groups B, E, F and G cannot indicate such preferences: these are the groups which require to be rehoused more urgently than others, and the fact that they cannot choose a particular area or type of property tends to make the process of rehousing quicker. However, for those in groups B, E, F and G the Council’s medical adviser may recommend the floor height, property type and facilities needed by the applicant. In the claimant’s case, it is common ground that she requires two-bedroom accommodation on the ground floor or with a lift (because of her back problem) and central heating.
When applicants are registered for housing, they are placed at the bottom of the list for their group, for the size of property they need, in the allocation areas they are registered for. Every new applicant joins the bottom of their list. Applicants are listed in priority date and time order. The policy states “It is not possible for applicants to go down their lists, unless they refuse a reasonable offer.” (p.38).
In accordance with the above principles, the defendant’s computer system then generates “matchlists” which match the properties available, according to their size, characteristics, and area, with the needs of the applicants in each allocation group. A property is offered to the highest-placed applicant on a matchlist for whom the property is appropriate in terms of their need and preferences as assessed by the defendant and (for groups A, C, and D) the applicant.
Depending on what properties are shown on the “matchlists” so produced, offers are made in the following order of priorities:
(a) Group A – right to return
(b) Group B – emergencies
(c) Group C – supply transfers
(d) Groups D to G – whichever is further proportionally behind its “target” (p.37 of the policy).
The “targets” for groups D, E, F and G are set annually as a percentage target for each group. According to the allocation policy (p. 38):
“Groups A, B and C are not targeted groups. Targets for the other groups are percentages of all allocations and nominations after setting aside lettings to these three groups.
The targets for group E (homeless) are based on the level of supply expected and the number of allocations that would be required in order to keep temporary accommodation use stable; plus the number required to achieve the change in temporary accommodation use planned for the period.
The targets for group F (referrals) are set in consultation with each of the accredited referral agencies, and relate to the allocation they require to meet their housing needs, while taking into account the pressure of need from other sources.
The targets for group G (HOMES) are set in response to number requested by HOMES (see page 12), which is based on a formula applied nationally.
The target for group D (mainstream) is derived from the projected supply, allowing for expected demand from groups A (right to return), B (emergencies) and C (supply transfers), and the targets for the other groups.
Performance against these targets – borough-wide and in each allocating office – is kept under continuous review to ensure that they are met. The effect of performance on each applicant group is also reviewed, and targets changed if necessary.”
Although it is not expressly stated in the policy, Mr Fowler’s first witness statement indicates that the targets for groups E and F (group G is very small in any event) are set at a proportionately higher level so that applicants within these groups have a proportionately better chance of being rehoused. The following table, presented in Mr Fowler’s second witness statement, sets out the number and share of applicants in each of Lambeth Housing’s allocation groups on 6 September 2001, and the number and share of allocations to those groups between 1 April 2000 and 31 March 2001, inclusive:
| Group |
No. of applicants |
Share of applicants |
No. of lettings |
Share of lettings |
Ratio: letting share to applicant share |
| A, Right to return |
n/a |
n/a |
11 |
0.5% |
n/a |
B, Emergencies
of which, Part VI |
102
19 |
0.4%
0.1% |
69
4 |
3.2%
0.2% |
7.5 to 1
1.8 to 1 |
C, Supply transfers
of which, Part VI |
540
93 |
2.3%
0.7% |
144
17 |
6.7%
1.1% |
2.9 to 1
1.6 to 1 |
D, Mainstream
of which, Part VI |
20,951
12,009 |
88.8%
85.1% |
756
428 |
35.3%
26.6% |
0.4 to 1
0.3 to 1 |
E, Homeless
of which, Part VI |
1,319
|
5.6%
9.3% |
999
|
46.6%
62.2% |
8.3 to 1
6.6 to 1 |
F, Referrals
of which, Part VI |
694
667 |
2.9%
4.7% |
139
136 |
6.5%
8.5% |
2.2 to 1
1.8 to 1 |
G, HOMES
of which, Part VI |
n/a
n/a |
n/a
n/a |
24
23 |
1.1%
1.4% |
n/a
n/a |
Total
of which, Part VI |
23,606
14,107 |
100.0%
59.8% |
2,142
1,607 |
100.0%
75.0% |
1 to 1
1.3 to 1 |
It will be seen from the above table that in the year to March 2001 group E accounted for 5.6% of total applicants (9.3% of Part VI applicants) but received 46.6% of total lettings (62.2% of Part VI lettings). Group F accounted for 2.9% of total applicants (4.7% of Part VI applicants) but received 6.5% of total lettings (8.5% of Part VI lettings). By contrast, group D, which accounted for 88.8% of total applicants (85.1% of Part VI applicants), received only 35.3% of total lettings (26.6% of Part VI lettings).
I am told that the targets fixed in July 2000 for groups other than A, B, and C were: D–30%, E–55%, F–13% and G–2%.
The relationship between the defendant’s allocation policy and section 167(2) of the Act is explained on pages 14 to 16 of the allocation policy in the following terms:
“Reasonable preference
Section 167(2), Housing Act 1996 stipulates that, among housing register applicants, reasonable preference must go to certain categories. The allocation scheme fulfils this both directly and indirectly.
The reasonable preference categories are:
(a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions
This is partly addressed by groups B (emergencies) and C (supply transfers).
(b) people occupying housing accommodation which is temporary or occupied on insecure terms
This is particularly addressed by group E (homeless households).
(c) families with dependent children
This is particularly addressed by assessing the property size needs of applicants, and setting a maximum size, so that family-sized dwellings are allocated almost exclusively to those with children.
(d) households consisting of or including someone expecting a child
This is particularly addressed by assessing the size need of a household expecting a child as if the child were already born.
(e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds
This is partly addressed by group B (emergencies), which includes urgent medical cases.
The requirement that additional preference is given to households who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future is met by group F (referrals).
(f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation
This is particularly addressed by groups E (homeless households), F (referrals) and G (incoming HOMES).
(g) homeless households
...
This is particularly addressed by group D [I take it that this is a misprint for group E] (homeless households).
The statutory reasonable preference categories are not to be considered in isolation from one another, and they may work cumulatively in certain cases.
It is not just the allocation groups, but all of the elements of the scheme, including self-assessment, that together form Lambeth’s response to s167(2).
The choices applicants make are founded on a combination of their need, their preferences and how acutely they feel the need to move.
Applicants are asked about their present circumstances. Where they indicate their accommodation is unsatisfactory, they are given clear advice to make their choices accordingly, to allow the most acceptable estimated waiting time for satisfactory housing.
The council may also give certain applicants in groups E (homeless), F (referrals) and G (HOMES) more priority within those groups if necessary to assist in discharging the council’s statutory duties or to take account of relative levels of housing need.”
As regards the question of further priority for certain groups, the policy further states at page 16 under the heading ‘What is assessed’
“Because their choices are restricted, those in groups B (emergencies), E (homeless), F (referrals) and G (HOMES) are also assessed for:
- Required property type (eg, for medical reasons) – see page 27
- Unsuitable areas (eg, due to risk of violence) – page 26
- The need to assign more priority within those groups if necessary to assist in discharging the council’s statutory duties or to take account of relative levels of housing need”
Page 39 states, under the heading ‘Order of applicants on the lists’
“The council reserves the discretion to give applicants in groups E (homeless), F (referrals) and G (HOMES) more priority within those groups if necessary to assist in discharging the council’s statutory duties or to take account of relative levels of housing need”
Finally the policy (p.35) provides for discretionary panels, consisting of council officers, whose duties including considering requests by applicants to change aspects of the council’s assessment in exceptional circumstances, or to change “any other aspect of the assessment” where the matter has been taken up with the assessing officer’s manager but no satisfactory outcome has been achieved.
The allocation policy as operated from September 2000
The argument in this case having initially proceeded on the basis that the defendant’s policy was as I have just indicated, Mr Fowler’s second witness statement revealed that that was not the case. It appears from that statement that in the autumn of 1999 and early in 2000 a crisis in the number of homeless households in the Borough of Lambeth led to the suspension of some of the targets for the different groups set at that time, but I do not need, for present purposes, to make any specific findings about that period. More importantly for present purposes, Mr Fowler’s second witness statement makes clear that a further development of the homelessness crisis lead the defendant’s Executive Director of Housing, Mr Broomfield, to make significant changes to the allocation system with effect from 7 September 2000. Had the defendant not been pressed on the mechanics of the policy in the course of the hearing, this case could well have proceeded on a materially misleading basis.
According to Mr Broomfield’s instruction of that date, the allocation of vacant properties as from 7 September 2000 was to be in the following order:
“1. Group A (properties set aside for right of return)
2. Group B (emergencies)
3. If no suitable emergency applicants then:
E (homeless) 80% of voids
C (supply transfers) offer only to bring allocations up to 20%.”
It was further said by Mr Broomfield:
“do not offer to:
Allocation group Share of offers
D (mainstream) zero
F (referral quotas) zero
G (incoming HOMES nominations) zero”
According to Mr Fowler in his second witness statement these targets, or lack of them, continue to date. According to Mr Fowler, this state of affairs does not, however, result in other groups such as group F, receiving no allocations in practice, because some properties were not suitable for any of the applicants in the new priority groups A, B, E and C. If it has been established that there are no suitable applicants in those groups for a particular property then, according to Mr Fowler, the instruction is to offer them to group F, and to turn to group D only if there are no suitable group F applicants for a given property.
However, says Mr Fowler, almost all dwellings with two bedrooms or more are currently being allocated to homeless households, except some on higher floors or without central heating. As I understand it, the result is that since at least September 2000 almost all the properties of the kind suitable for the claimant (two bedrooms, central heating, ground floor or lift) have in fact been let to homeless persons in group E, presumably to a significant extent at the expense of the claimant, and others in a similar position, in group F.
Arguments of the parties
The essence of the parties’ main arguments, in the form finally presented to the Court, is as follows.
Issue (1) – the lawfulness of the policy as published in July 2000
The claimant submits, first, that there is no evident correlation between the allocations policy as published in July 2000 and the requirement to give reasonable, or as the case may be, additional preference, to the various categories of persons identified in section 167(2). Thus, for example, as regards people “occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions” under paragraph (a) of that section, the policy merely states that “this is partly addressed by groups B (emergencies) and C (supply transfers)” (emphasis added). Although some cases may fall within these categories, or possibly within group F via a referral from another agency, reasonable preference is not necessarily secured to all persons within sub-section (a). As regards people “occupying housing accommodation which is temporary or occupied on insecure terms” under sub-section (b), they do not appear to be catered for at all, since they would not normally be “homeless” within the meaning of group E. Similarly neither “families with dependent children” under sub-section (c), nor “households including someone who is expecting a child” under sub-section (d), appear to receive reasonable preference.
As regards more specifically “households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds” within paragraph (e), although group B may partially address “medical” grounds, there is, says the claimant, no provision for giving reasonable preference on “welfare” grounds. Moreover persons within paragraph (e) who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future are entitled to an additional preference. Although the policy states that that need is met by group F, those placed in group F do not in fact receive preference over other persons on the housing register. In any event, it is difficult to obtain the necessary referral, and group F itself consists of a disparate collection of different kinds of referral which may reveal varying levels of need, and some with no statutory preference at all. There would appear to be no mechanism for securing that persons fulfilling the statutory criteria for additional preference under section 167(2) actually receive it, either vis à vis other persons in group F, or vis à vis persons in other groups on the housing register. Neither the fact that group F allegedly receives a larger percentage share of allocations, nor the alleged residual discretion to deal with exceptional cases (see ex parte Reilly and Mannix cited above), nor the possibility of a reference to the ‘discretionary panel’, is sufficient to secure the additional preference which the statute requires.
Furthermore, group F is not a priority group. According to the policy as published, it comes after groups A, B and C. There will be at least some Part VI cases in group C who could obtain priority over those in group F, particularly where someone in group C opts for the widest possible choice of area or property. Moreover, since as between groups D to G there is no particular priority under the published policy, allocations are made to whichever group “is further proportionally behind its target”, according to p.37 of the published policy. This, combined with the ability of those in group D to self-assess, means that at a given moment, for example when group D is behind with its target, applicants in group D with no priority whatsoever could well be allocated properties that would in fact be suitable for persons in group F, and thus move ahead of those who are entitled to the reasonable and additional preference envisaged by section 167(2)(e). In fact it is misleading to say, as the policy does at p.38 “it is not possible for applicants to go down their lists”.
Thirdly, says the claimant, there is no mechanism under the policy for assessing composite need where a person falls into more than one of the categories set out in section 167(2), as required by ex parte Reilly and Mannix, and by R v Westminster CC ex parte Al Khorsan (1999) 33 HLR 77, 81. In this case, the claimant has neither received the additional preference to which she is statutorily entitled, nor any further consideration by virtue of the fact that she fulfils virtually all the categories listed under section 167(2).
With regard to the figures set out by Mr Fowler, the claimant submits that it is more relevant to consider how the lettings are divided up in absolute terms than to consider the ratio of share of lettings achieved by each applicant group. It is to be noted that in absolute terms group D, which has no priority at all, achieved more lettings (756) than group F (139) which is supposed to have priority, as did group C (144). Moreover, according to the claimant, it is not made clear in the published policy that applicants may apply for additional preference, nor how to do so, so people do not know where they stand. In any event, according additional preference is a matter of statutory duty, not something which the applicant should have to apply for. The existence of an appeal as in R v Wolverhampton MBC ex parte Watters (1997) 29 HCR 931 does not in itself render a policy compliant.
The defendant submits that in framing a scheme under section 167(2) a housing authority is to be accorded a considerable degree of latitude in how it achieves the reasonable and additional preferences required, see notably the Ministerial Guidance cited above. In “walking a tightrope between vagueness and unfettered discretion, between over-complexity and over-simplification” the defendant has sought to frame its scheme which takes account of the decisions of the Courts in Reilly, Al Khorsan and Watters.
In fact, the various groups A to G will, in effect, take into account all the categories of need in section 167(2). The system of allocating applicants to particular groups and then allocating targets to groups D to G in such a way that the categories of need (particularly groups E and F) receive a greater percentage of offers ensures the reasonable and additional preferences in question. That is reinforced by the restriction of choice as regards area or type of property for categories B, E, F and G, which ensures that those categories’ needs are met more quickly. The offer of properties to applicants in date order of application avoids the disadvantage of the previous ‘points system’ whereby a person’s position on the list could fluctuate up or down when someone with more ‘points’ was put on the list ahead of them. In any event, there is a residual discretion which enables specific needs in any particular case to be taken into account, either directly (see pp.16 and 39 of the policy) or by the discretionary panels (p.33). Moreover, the defendant’s scheme is in line with the Government’s Housing Green Paper published in 2000, which favours a move away from complex points-based systems to more broad-brush banding systems.
As regards the specific points made by the claimant, the defendant submits that most group C cases are existing tenants outside Part VI of the Act; the remainder would in any event fall within one or other of the reasonable preference categories in section 167(2). The system is not weakened by self assessment, which is a form of fine tuning. Once applicants have been placed in groups with broadly similar levels of need, self assessment affects only an applicant’s waiting time within the group. The system does not ignore the possibility of composite need: see p. 15 of the Policy which states “The statutory reasonable preference categories are not to be considered in isolation from one another, and they may work cumulatively in certain cases”. Persons with a particular need for settled accommodation on medical or welfare grounds, and who cannot be expected to find settled accommodation for themselves in the foreseeable future, are particularly catered for by group F, as shown by the figures produced by Mr Fowler. As regards those figures, it is the ratio which is important rather than absolute numbers of lettings: most of the 756 cases under group D are single bedroom applicants.
Furthermore, there is always the discretion to accord greater priority within a group, although in practice this rarely needs to be exercised. If the situation of a particular applicant becomes really bad, there is the possibility of group E (homeless) or possibly group B (emergency).
Issue (2) – the lawfulness of the policy as operated from September 2000
As regards issue (2), Mr Manning submitted that, in the light of Mr Fowler’s second witness statement, since September 2000 the defendant had failed to adhere to the scheme as published in July 2000 contrary to section 167(8), and had failed to comply with its statutory duties under section 167(2). The facts set out at paragraphs 35 to 38 above show a significant deviation from the statutory scheme and a failure to accord either reasonable or additional preference, particularly to those within section 167(2)(e). Mrs Oldham did not, so it seemed to me, strongly resist the claimant’s submissions on these points but relied on the submissions already made.
Analysis
— Issue (2)
It is convenient to deal first with issue (2), that is to say the lawfulness of the policy as operated from September 2000 in the manner explained in Mr Fowler’s second witness statement.
As already indicated, the allocation policy as published in July 2000 explains on page 37 that
“the allocating officer decides which matchlist to offer in the following order:
a) group A, right of return
b) group B, emergencies
c) group C, supply transfers
d) groups D-G whichever is furthest proportionally behind its target.”
The setting of targets in percentage form for groups D, E, F and G is further explained on pages 37 to 38. It is stated in particular in relation to group F that the targets are “set in consultation with each of the accredited referral agencies, and relate to the allocation they require to meet their housing needs, while taking into account the pressure of need from other sources”. The referrals to which group F relates are also set out (see paragraph 23 above).
It appears, however, from Mr Broomfield’s letter of 7 September 2000 (paragraph 36 above) that instead of the order of priority among groups going A, B, C and then D-G, as in the published policy, the order of priority has become A, B, E (as to 80% of voids), C (as to 20% of voids), followed by zero allocations for groups D, F and G.
That change of priority, which is, in effect, the promotion of group E (homeless) at the expense of the other groups, seems to me to be a major deviation from the policy as published in July 2000. Section 167(8) of the Act requires a local housing authority not to allocate housing except in accordance with their allocation scheme. In this case ‘the allocation scheme’ for the purposes of section 167 (including section 167(8)) is that published in July 2000, in accordance, presumably, with section 168.
To the extent that, since September 2000, the defendant has allocated housing in accordance with the priorities set out in Mr Broomfield’s letter of 7 September 2000, and not in accordance with the order of priority in the policy published in July 2000, it seems to me that it must follow that the defendant has acted in breach of section 167(8) of the Act and, in consequence, unlawfully.
I acknowledge the difficult circumstances the defendant found itself in, but the statute does not seem to admit of any solution other than to change the published scheme to meet a new situation. Indeed, if a published scheme could simply be ignored in this way, it is difficult to see how such a scheme could “secure” the preferences referred to in section 167(2), and what would be the point of the requirement of publication under section 168. I would also have thought that the new priority accorded to group E was arguably “a major change of policy” to which section 167(7) and 168(3) would, at first sight, seem to apply.
Mr Fowler’s observation that some allocations to group F have continued to be made, because not all properties were suitable for groups A, B, E and C, is no doubt true, and is perhaps partially borne out by the table set out above, albeit that that table relates to the whole period 1 April 2000 to 31 March 2001. But that is not an answer to the problem, since the instruction which Mr Fowler says he was acting under (to offer to group F after groups A, B, E and C, and only then to offer to group D) is not in the published scheme either.
It is also to be noted that under section 167(1), the scheme in question must not only determine priorities but also “the procedure to be followed”. For the purposes of that section, “Procedure” includes “all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken”. Those requirements are presumably there to ensure a level of transparency, so that those on the housing register know where they stand, who takes the decisions and what the decision-making process is. As far as I am aware, the procedure set out in the letter of 7 September 2000, both as to the order of offers to be made, and how and by whom decisions are to be taken, forms no part of the published scheme. Indeed, none of those matters is referred to in Mr Fowler’s first witness statement of 18 July 2001 which purports to explain how the published policy operates in practice
On that basis alone, namely a breach of section 167(8) of the Act, I find for the claimant on issue (2).
I add that, while a housing authority has latitude to give more weight to some of the factors set out in section 167(2) rather than others (see paragraph 5.7 of the current guidance), and to adjust its percentage allocations or targets in a reasonable way to meet changing patterns of demand during the year, I doubt whether the authority has the power, under that section, to give overwhelming preference to one of the categories listed (in this case homeless persons added to section 167(2) by the 1997 regulations) at the expense of virtually all the others. The effect of the letter of 7 September 2000, at least at first sight, is to do precisely that. Apart from the very small number of emergencies in group B (only four Part VI lettings in 2000/01), all other groups with Part VI applicants are in principle allocated zero offers. The result is to be seen in the table above, which shows that although homeless persons accounted for only 9.3% of Part VI applicants, such persons accounted for 62.2% of Part VI lettings. The ratios of letting share to applicant share for group E are approximately four times that of group F, and about 20 times that of group D, which itself comprises the bulk of the Part VI applicants.
It seems to me that if a housing authority decides to give one of the categories listed in section 167(2) what is, in effect, close to an absolute priority, the authority risks disabling itself from giving the other categories in that section the reasonable preference which the statute requires. Here the available figures show that group E, representing about 10% of the Part VI applicants received 62% of the allocations, while the other 90% of Part VI applicants shared the remaining 38%. Since the figures relate to the year to March 2001, and not just to the period September 2000 to March 2001, presumably the proportion of properties allocated to group E in the period after September 2000 would have been even higher. In these circumstances I have difficulty in seeing how the defendant, in that period, could have accorded “reasonable preference”, within the meaning of the Act to the other categories set out in paragraphs (a) to (e) in section 167(1), and particularly to those falling within more than one of these paragraphs.
A perhaps more fundamental problem relates to the statutory requirement to give additional preference to persons within paragraph (e) who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future. If ‘reasonable’ preference means giving certain applicants “extra weight” or “a head start” (see Leggatt and Judge LLJ in ex parte Watters at pp. 936 and 938 respectively), it seems to me that ‘additional’ preference means that the applicants in question must be given, at the least, “additional weight” or “an extra head start”. As the guidance puts it (paragraph 5.10) this provision “does assume that people meeting this description will have first call on suitable vacancies”. Yet, on the information available to the Court, it appears that that was simply not the case for persons in the position of the claimant following the instruction of 7 September 2000. Those who in group E had only a reasonable preference under section 167(2) were apparently given priority over those in group F who had not only a reasonable preference, but also an additional preference as well. That does not seem to me to be in accordance with the provisions of section 167(2). On that ground also, I would find for the claimant on issue (2).
— Issue (1)
In light of my findings on issue (2) it may be somewhat academic to consider issue (1), since it apparently relates only to the operation of the policy between July and September 2000. Most of the argument was however devoted to issue (1), so I comment briefly as follows.
I would accept in broad terms that a quota system of some kind may be an appropriate method of securing the reasonable and/or additional preferences required by section 167(2): see Al Khorsan, at p. 80, and the ministerial guidance, paragraph 5.22. If such a system is intended to work on the basis of a proportionally larger quota being allocated to certain categories of particular need, I would have thought that that fact needs to be stated clearly in the scheme, which does not seem to be the case here.
I would also accept in broad terms that systems which include some form of referral, or an element of self-assessment, or priority based on date of entry on a list, would not seem in principle to be outside a housing authority’s discretion under section 167. In the present case, the treatment of group C under the published policy, much criticised by the claimant, does not seem to me to have been outside the defendant’s discretion either, given in particular the small number of Part VI cases likely to be concerned.
As between groups D, E, F and G, the published policy is (or was) based on allocations being made to the group which is “proportionally furthest behind in its target”. Whether such a system is in principle capable of securing the necessary preferences under section 167(2) is perhaps a more difficult question. I can see that some such rule is necessary to ensure that each of the quotas are in fact achieved, and that one should look at how the scheme works over some reasonable time period, but I can also see that in some cases such a system may in fact result, at any given moment, in someone in (say) group D who had only a reasonable preference, being preferred over someone in group F who had also an additional preference, simply because group D was, at that moment, further behind in its target. However, I do not feel that, within the parameters of the present case, I have sufficient information to express a firm view on this point one way or another.
Whatever underlying principles are in fact adopted, it seems to me that the question in each case is whether the scheme is such as to “secure” the relevant preference. In the factual context of the present case, it seems to me that two specific questions arise: (i) did the scheme as framed secure not only the reasonable, but also the additional preference to which this claimant is entitled under paragraph (e) and the last sentence of section 167(2)? (ii) did the scheme take into account the fact that this claimant qualifies for reasonable preference under a number of different paragraphs in section 167(2)?
As regards the first of these questions, the policy as published is not based directly on the categories listed in section 167(2), although how those categories are sought to be catered for is explained: see paragraph 32 above. While there is nothing unlawful in such an approach, a system that is only somewhat indirectly related to the statutory categories does run the risk that people in one or other of the categories will somehow “slip through the net” and not receive the preference to which the statute entitles them. In considering whether that can happen for those that have additional preference under section 167(2), it is common ground that the only two relevant categories are the category of emergencies in category B, and the referrals in group F. If it is a question of “welfare grounds”, the only relevant group is group F.
Leaving aside the narrow group B, the defendant’s main argument is that additional preference is (or was under the published policy) achieved by group F receiving a proportionately greater share of allocations under the target system. However, even supposing that group F received a proportionately greater target than group D, it appears that even in the period July to September 2000 the target for group E (55% of lettings for 6% of applicants) was, proportionally speaking, significantly more generous than the target for group F (13% lettings for 3% of applicants) (see the table, and paragraph 31 above). I thus doubt whether the targets for group F really gave additional preference to group F vis à vis group E which is not under the statute entitled to additional preference, but only to reasonable preference.
Moreover, group F itself consists of a number of different referrals, some of which may but others may not, enjoy the additional preference to which those fulfilling paragraph (e) and the last sentence of section 167(2) are entitled. Within group F there would not appear to be an obvious mechanism under the scheme for giving additional preference, within that group, to the persons entitled to such additional preference. I would have thought that the situation here is analogous to that in Al Khorsan where, within one category that had preference, there was no mechanism for giving greater weight, within that category, to those that had a further reasonable or additional preference. Latham J considered such a scheme to be unlawful, see p. 81, §9.
The defendant’s argument on this aspect is that the matter can be dealt with by the use of its residual discretion. However, it does not seem to me sufficient, in order to “secure” what is after all a statutory additional preference, to leave the matter to the residual discretion to which the scheme refers. By analogy with the approach of Richards J in ex parte Reilly and Mannix, at p. 666, in my view the residual discretion to which the published policy refers is too vague and uncertain, and leaves the statutory duty to give additional preference on an undefined and unguided discretionary basis.
Moreover, as I have already said, the scheme makes no clear reference to the mechanism by which such additional preference is to be accorded, even on a discretionary basis, by whom the decision is to be taken, by reference to what criteria, and what an applicant needs to do in order to qualify. It is not in my view sufficient to leave it to the applicant to attempt to pursue the matter via the assessing officer and the discretionary panel: the scheme should define clearly the circumstances in which additional preference is to be granted and provide a clear procedure for that to be done. The inadequacy of the residual discretion in the present case is reinforced by Mr Fowler’s evidence to the effect that the residual discretion is only very rarely exercised, the assumption being that the policy itself deals sufficiently with the additional preference in question. For the reasons already given, I do not think that that assumption is well-founded.
Finally, as regards the further question of whether the scheme deals adequately with the problem of ‘composite need’, it now seems to be established by the decisions in ex parte Reilly and Mannix (p. 666), Al Khorsan (p.81) and R v Tower Hamlets London Borough Council ex parte Uddin (1999) 32 HLR 391, that an allocation scheme must take account of the fact that applicants may fall within more than one of the categories in section 167(2), and provide at least some mechanism for giving greater weight to those whose needs are greater by virtue of an accumulation of the different categories. That principle seems to me to apply a fortiori to a case where, in addition to fulfilling one or more of the other categories, an applicant qualifies for the additional preference required by paragraph (e) and the last sentence of section 167(2). Although the published policy states (see paragraph 31 above) that the different categories may work cumulatively in certain cases, it is not clear to me how that is to be done. For the reasons already given, it seems to me that the scheme lacks a clear mechanism for assessing cumulative categories, particularly where one of the categories gives rise to an additional preference.
For these reasons in my view the claimant succeeds also on issue (1). I propose to hear argument on the form of relief.
SIR CHRISTOPHER BELLAMY: I think that anonymised versions of the judgment have now been made available. Thank you for your comments. Unless there are any other observations or comments, I give judgment in the form of the draft that has already been circulated.
MR MANNING: My Lord, I have no further comments.
SIR CHRISTOPHER BELLAMY: Sorry?
MR MANNING: My Lord, there is nothing further that we wish to --
SIR CHRISTOPHER BELLAMY: Nothing further that you wish to address me on or help on?
MR MANNING: No, my Lord.
SIR CHRISTOPHER BELLAMY: Thank you very much. Is it possible to give me an indication of whether the claimants' case is progressing at all?
MR MANNING: My Lord, it is --
SIR CHRISTOPHER BELLAMY: If that has become such a difficult question, Mr Manning, you do not need to answer it.
MR MANNING: I think it is progressing, my Lord. I am not entirely clear. There seems to have been some problem with communication between those instructing me and the Authority as to what exactly the position is at the moment. But as far as I am aware, it does seem to be progressing.
My Lord, can I apologise for keeping the Court waiting.
SIR CHRISTOPHER BELLAMY: Not at all. Not at all.
MR MANNING: I am afraid I was --
SIR CHRISTOPHER BELLAMY: Does any point arise on the form of the order, or is that something that can be left for your --
MR MANNING: My Lord, I do not know whether this has been handed in to your Lordship. We have agreed that, so far as the allocation policy itself is concerned, obviously subject to your Lordship's approval, that a declaration in the form set out would be probably the most appropriate course.
SIR CHRISTOPHER BELLAMY: (1) is all right. (2) --
MR MANNING: My Lord, on the basis that following your Lordship's decision that direction should never have existed, at least not in the form it did, it seemed appropriate to quash that.
SIR CHRISTOPHER BELLAMY: Yes.
MR MANNING: That would leave the policy -- or would not leave the Authority without any framework for making arrangements, and if they wish to make a different arrangement, they could still do so.
SIR CHRISTOPHER BELLAMY: Yes.
MR MANNING: My Lord, the only other matter arising is the reassessment of need.
SIR CHRISTOPHER BELLAMY: Yes.
MR MANNING: I am told that is progressing. My learned friend has helpfully indicated to me this morning what stage that is at.
SIR CHRISTOPHER BELLAMY: Yes.
MR MANNING: It seems to me that it is clear from your Lordship's decision that the claimant is entitled to a further reassessment.
SIR CHRISTOPHER BELLAMY: Yes.
MR MANNING: I have no reason to believe that Lambeth would frustrate that, so I do not seek any mandatory relief on that issue. But I wonder if -- and this is something I think we are not agreed about. I wonder if it might be appropriate to declare that the claimant is entitled to a further assessment or reassessment of her housing needs.
SIR CHRISTOPHER BELLAMY: I had understood that that was more or less conceded, Miss Oldham.
MISS OLDHAM: That is correct, my Lord, yes, and obviously a declaration to that effect would not be necessary.
SIR CHRISTOPHER BELLAMY: The declaration would not be necessary?
MISS OLDHAM: My Lord, at the hearing Lambeth undertook to commence that process in any event. I wonder, therefore, whether it is necessary to actually include that in the form of substantive relief.
SIR CHRISTOPHER BELLAMY: If we were doing it by the book, we would probably say something like, on the defendant's undertaking to reassess --
MISS OLDHAM: My Lord, yes.
SIR CHRISTOPHER BELLAMY: -- the applicant's application, the Court makes no order or grants no relief, or whatever the right phrase is --
MISS OLDHAM: My Lord, yes.
SIR CHRISTOPHER BELLAMY: -- on the question whether her application had been properly considered in accordance with the policy.
MISS OLDHAM: Or an undertaking to reassess her priority, her housing allocation priority. That is the actual exercise which --
SIR CHRISTOPHER BELLAMY: Whatever is correct. Something of that nature.
MR MANNING: My Lord, I would be content with that. What concerns me is there should be something on the record.
SIR CHRISTOPHER BELLAMY: I think the order should have liberty to apply in it so that you -- in the event of unexpected difficulties arising, the Court can be reseized of its order and make any further order that becomes necessary.
MR MANNING: My Lord, I am obliged.
SIR CHRISTOPHER BELLAMY: So we will say that there is liberty to apply, and can I leave it to you and the good officers of the court to draft an appropriate order?
MISS OLDHAM: Yes, my Lord.
MR MANNING: My Lord, yes.
SIR CHRISTOPHER BELLAMY: Which technically I ought to sign off when that has been done.
MR MANNING: My Lord, before your Lordship rises, there is an application for costs.
SIR CHRISTOPHER BELLAMY: Yes.
MR MANNING: There is not very much we can say about that. We have succeeded, and in my respectful submission, costs should follow the event.
SIR CHRISTOPHER BELLAMY: You are asking for the normal order, are you not?
MR MANNING: My Lord, yes.
MISS OLDHAM: I cannot resist that, my Lord. One final point. I am instructed to seek your Lordship's permission to appeal in this matter.
SIR CHRISTOPHER BELLAMY: Yes.
MISS OLDHAM: It is a matter of considerable importance, not only to obviously the defendant but to housing authorities generally.
SIR CHRISTOPHER BELLAMY: Yes.
MISS OLDHAM: For that reason I do seek such permission, my Lord.
SIR CHRISTOPHER BELLAMY: Yes. I think on that point, Miss Oldham, you should ask the Court of Appeal.
MISS OLDHAM: So be it, my Lord.
SIR CHRISTOPHER BELLAMY: I am not satisfied you have sufficient prospects of success to grant you permission.
MISS OLDHAM: So be it, my Lord.
MR MANNING: My Lord, I cannot remember whether I need a funding assessment -- I think I probably do -- for my public funding. I think I do need that.
SIR CHRISTOPHER BELLAMY: If you do, Mr Manning, of course you may have it.
MR MANNING: My Lord, I am grateful.
SIR CHRISTOPHER BELLAMY: Yes. Very well. Thank you very much.
