England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		29th May 2002

1. MR JUSTICE SULLIVAN: This application for judicial review is yet another challenge to the allocation scheme adopted by the defendant Council under Part VI of the Housing Act 1996. The characteristics of the scheme are set out in some detail in the decision of Sir Christopher Bellamy QC (sitting as a deputy High Court Judge) in The Queen on the application of L and D v The Mayor and Burgesses of the London Borough of Lambeth [2001] EWHC Admin 900. Some further details are included in my own decision in The Queen on the application of Lindsay v the London Borough of Lambeth [2002] EWHC Admin 809.
2. Those decisions also set out the statutory background. Since this application raises one narrow issue in relation to the allocation scheme, I think it unnecessary to rehearse yet again either the statutory background or the details of the allocation scheme. Suffice it to say that section 167(2) of the 1996 Act requires that reasonable preference is given to persons falling within certain categories. Within the Act itself, those to whom the Council owed a duty because they were statutorily homeless were not included among the priority categories, but by section 167(3):

"The Secretary of State may by regulations --

"(a) specify further descriptions of people to whom preference is to be given, as mentioned in subsection (2)".

3. The Allocation of Housing (Reasonable and Additional Preference) Regulations 1997, regulation 2 provides:

"The following are specified as further descriptions of people to whom reasonable preference is to be given in the allocation scheme of a local housing authority:

"(a) people owed a duty by that authority under section 193 or 195(2) of the Housing Act 1996 ("the 1996 Act") ..."

4. The defendant accepted that it owed the claimants a duty under section 193 in a letter dated 29th August 2001. The background facts are as follows. The claimants had applied to the Council for accommodation, pursuant to Part VII of the 1996 Act, as long ago as 3rd August 1999. The Council did not accept that they were in priority need. When they were evicted from their former accommodation on 1st October 1999, they were placed in interim accommodation at Rutford Road Hostel, SW16, by the Council.
5. The claimants challenged the Council's decision that they were not in priority need. That litigation wound its way through the County Court and found its way, by judicial review proceedings, into this Court. In due course, the dispute about priority need was made academic because the second claimant became pregnant. Thus it was that the Council agreed to accept a full section 193 duty in the letter of 29th August 2001.
6. The claimants had been supplied with a match list printout, which set out their priority for accommodation under the Council's allocation scheme, on 16th March 2001. At that stage, of course, there was no child, and so they had been approved for a one-bedroomed, two-person unit. Their waiting time for such a unit ran from 3rd August 1999, that is to say, the date when they applied for accommodation. The Council's lists relate to 34 different areas within the borough, and the claimants were placed in the range of 28th to 36th in those areas.
7. When the Council was told that the second claimant was pregnant and that a baby was expected, it re-assessed the claimants and concluded on 6th September 2001 that they required a two-bedroomed, three-person unit.
8. The bone of contention between the parties is as follows: under the Council's allocation scheme, the claimants' waiting time for that two-bedroomed unit runs from 6th September 2001, that is to say, from the date on which they were assessed as needing accommodation of that type. It does not run from 3rd August 1999, the date when they first applied to the Council for accommodation.
9. The practical consequence, from their point of view, is that by 6th September 2001, they had just about reached the front of the queue for a one-bedroomed unit. Indeed, they had received an offer of such a unit from the Council. The Council concedes that this offer was made in error, because the details of the second claimant's pregnancy had not been entered on its records.
10. So far as a two-bedroomed unit is concerned, the claimants, because they had gone to the bottom of the queue as from 6th September 2001, are likely to have to wait for a minimum of two years before an offer of such a property is made. On 12th October 2001, they were told that their match list position for a two-bedroomed, three-person unit was 627th to 644th in the queues for the various housing areas.
11. By the beginning of this year, their position had improved to a range of 513th to 530th. The difference between these figures and the figures for the one-bedroomed unit is a reflection of the greater availability of one-bedroomed units and the greater demand within Lambeth for two-bedroomed units.
12. The claimants' son, Sami, was born on 19th March this year. The claimants, together with Sami, still occupy their one room at the Rutford Road Hostel. The second claimant and the baby sleep in the bed, while the first claimant sleeps on the floor.
13. It is Mr Latham's submission on their behalf that they justifiably find the current situation bizarre. Their housing need has plainly increased, but under the Council's allocation scheme, their priority for accommodation has declined.
14. He submits that the Council's policy is unreasonable. If a young couple apply for accommodation prior to starting a family, it is possible that they might never receive an offer of accommodation, because as their family grows and their demands for accommodation change, they could, at least in theory, be constantly relegated to the bottom of a new queue, that is to say, a queue for larger-sized accommodation, just as they are near the top of the queue for a smaller-sized unit.
15. In an extreme case, he submits, the point might be reached when teenage children start to leave home, and so the re-assessment of accommodation needs would mean that the applicants' needs would actually reduce in size and they would then go to the back of a queue for a smaller property and start all over again, condemned, as he put it, to an eternal treadmill.
16. That is a somewhat extreme and hypothetical example. Under the Council's allocation scheme, so far as property size is concerned, two children can share a room, regardless of their sex, if both are aged under 10; and if children are of the same sex and both under 16, they can also share a room. So the spectre raised by Mr Latham is perhaps unlikely to arise in practice. But, undoubtedly, there is a practical problem, as identified by the facts of the present case.
17. The question is whether that practical problem renders this particular aspect of the Council's policy unlawful. I emphasise the words "this particular aspect of the Council's policy". Other aspects of the Council's policy, and the extent to which it does or does not reflect the reasonable preference requirements set out in section 167 of the Act, are due to be considered by the Court of Appeal next month. It is therefore unnecessary and undesirable for me to express any view about them.
18. In any event, such arguments would not avail these particular claimants. Even if those who are homeless and placed within the Council's group E do differ in their needs -- for example, some may be entitled to a reasonable preference under paragraph (a) in subsection 167(2); whereas some may be entitled to preference under paragraph (b), in addition to other paragraphs -- the claimants do not contend that, apart from the birth of their son, they are entitled to any particular preference beyond that which should be given to those in respect of whom the Council has accepted a duty under Part VII of the 1996 Act.
19. On behalf of the claimants, Mr Latham accepted that the position of the claimants in group E, having moved from group D (Mainstream Applicants), to group E (Homeless Applicants), was fairly determined by reference to the date when they became homeless, rather than the date of their application prior to their becoming homeless, which led to them being placed in group D.
20. It is implicit in the claimants' position that they accept that the amount of time waiting for a property is a proper criterion which the Council may take into account for certain purposes. The claimants contend that waiting time within group E should be measured from the time when an application for accommodation, of whatever size, is made to the Council. The Council's position, by contrast, is that waiting time should be measured in terms of the amount of time waiting for a property of that particular size.
21. On behalf of the Council, Mr Bhose explains that the purpose of this aspect of the Council's allocation scheme is to prevent leap-frogging. This was a particular problem under the old scheme: an applicant for housing would get to the top of a queue and then at the last minute find himself pushed further down the queue by someone who had achieved greater priority than himself.
22. The position under the present system is that the claimants maintain the priority that they have achieved in respect of one-bedroomed properties, if they are prepared to accept such accommodation. But if they choose to go for a two-bedroomed property, then their priority in respect of that kind of property dates from the time when they were assessed as needing such a property.
23. He submit that, in considering whether this aspect of the Council's allocation scheme is reasonable, one should not fall into the trap of looking at the position simply through the eyes of the claimants and the perceived unfairness from their point of view. What they may perceive as unfair might be regarded as entirely fair by all the many other families in group E who were registered for rehousing between 3rd August 1999, the date when the claimants applied for housing, and 6th September 2001, the date the claimants were assessed as needing larger accommodation, and who have at all times during that period needed two-bedroomed accommodation. To such persons, there would be no sufficient reason why the claimants' more recent needs should take precedence over their long-standing needs. The Council endorses that view.
24. In essence, the rationale underlying its policy is that priority in the lists for particular sizes of property should go to those applicants who have been waiting the longest at that particular level of need. To adopt the claimants' suggestion would undermine the entire basis of the scheme. Moves between sizes of property and groups and areas are common, and if date retention was allowed ("date retention" meaning retaining one's priority in all respects as from the date when one first applied to the Council, regardless of size of property, group or area), that would mean that positions on the lists would become quite meaningless. Any person on any list would be liable to be overtaken by someone who had applied to the Council earlier in respect of some kind of property somewhere, but had then been re-assessed as needing a larger property. Thus, those seeking accommodation from the Council could not be given any realistic information which would enable them to judge how long they might have to wait.
25. In the Council's submission, the merit of the present scheme is that the claimants retain the priority they had achieved in respect of a one-bedroomed property, thus they suffer no loss of priority, but their changed need does not mean that they gain additional priority in respect of a two-bedroomed property.
26. During the course of submissions, I enquired whether the dilemma facing the claimants and the Council could not be expressed by two examples. Using purely hypothetical dates for convenience, the first example is that of Mr and Mrs A, who have no child, who apply to the Council on 1st January 2000 and, because it is accepted that a duty under Part VII of the 1996 Act is owed to them, are placed on the list for a one-bedroomed property. They rise to the top of the list for a one-bedroomed property, but a child is born on 1st January 2002, their needs are then re-assessed, and they go to the bottom of the list for two-bedroomed properties.
27. Their priority will be postponed after that of Mr and Mrs B, who, with their child, applied to the Council on 31st December 2001, and because it was accepted the Council owed them a duty under Part VII of the 196 Act, they were placed on the list for a two-bedroomed property on that day.
28. One can well understand how, from the perspective of Mr and Mrs A, that might well appear very unfair and unreasonable.
29. But then take the other example. Mr and Mrs A, together with their child, apply for a two-bedroomed property on 1st January 2000. Again, all the qualifying requirements for them to be placed in group E in the Council's allocation policy are met. Between 1st January 2000 and 1st January 2002, they rise to the top of the list for a two-bedroomed property. Just when they think that they are about to get such a property, imagine their distress when they are told by the Housing Department that they have been overtaken by Mr and Mrs B, who had no children when they applied to the Council and were assessed as in need of a one-bedroomed property on 31st December 1999. To their great joy, a child was born to Mr and Mrs B on 1st January 2002. So they now need a two-bedroomed property, and they will take priority over Mr and Mrs A and their child, who have been waiting for such a property for two years, for the simple reason that Mr and Mrs B applied to the Council before Mr and Mrs A, even though at that stage they did not need a two-bedroomed property.
30. Looking at that second example, one can well understand how, from the perspective of Mr and Mrs A in that case, the claimants' approach to priority in terms of date order would be seen as unreasonable and unfair.
31. The mere fact that a different system could be adopted, or that an aspect of the allocation scheme might be improved or done differently, does not mean that that particular aspect of the scheme is unlawful. It is for the Council to devise the structure of the scheme. A scheme which, inter alia, seeks to prevent leap-frogging is not in principle unreasonable. In my judgment, the Council's approach to this particular aspect of its scheme is within the ambit of discretion conferred upon it by section 167, and by reference to the two examples that I have set out above, it cannot be said that the Council's approach is irrational.
32. I should mention that Mr Latham, in his submissions, sought to link the Council's discharge of its duty under Part VII of the Act with the allocation policy under Part VI. Under section 193, the Council must secure that accommodation is available for persons with priority need who are not homeless intentionally.
33. Mr Latham points to section 193(6):

"The local housing authority shall cease to be subject to the duty under this section if the applicant ...

"(c) accepts an offer of accommodation under Part VI (allocation of housing)".

34. 193(7):

"The local housing authority shall also cease to be subject to the duty under this section if --

"(a) the applicant, having been informed of the possible consequence of refusal, refuses an offer of accommodation under Part VI, and

"(b) the authority are satisfied that the accommodation was suitable for him and that it was reasonable for him to accept it and notify him accordingly within 21 days of the refusal".

35. Section 206(1) of the Act:

"A local housing authority may discharge their housing functions under [Part VII] ...

"(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".

36. Mr Latham submits that the acceptance of a housing duty under Part VII of the Act is the trigger that brings the obligation to give reasonable preference under section 167 into play (see regulation 2 of the 1997 regulations, see above).
37. It is plain that when that duty was accepted in August 2001, a one-bedroomed property was not suitable. It was accepted that a two-bedroomed property was required. It was quite artificial to go back to the need that had been assessed as at the date of the claimants' application for accommodation to the Council.
38. Mr Bhose submits that the Council's duties under Part VI and VII of the Act are, and should be, kept distinct. It is perfectly true that if an offer of accommodation under Part VI is made and accepted, or unreasonably refused, the local housing authority ceases to be subject to a duty to the applicant under Part VII.
39. But the offer of accommodation under Part VI is a separate stage. If accommodation under Part VI is offered and is refused, for example, because it is regarded as inadequate in terms of size, then the person seeking accommodation from the Council can have that decision statutorily reviewed, and if dissatisfied with the outcome of the review, can apply to the County Court.
40. He submits that that exercise, that is to say, the offer of accommodation which, if it is accepted, alternatively if it is concluded that it has been unreasonably refused, would mean that the duty under Part VII would cease, is a separate stage, which raises questions that are for another day. The sole matter that is in issue before this Court is the lawfulness of the policy under Part VI.
41. I accept those submissions. There are, as I say, wider aspects of the lawfulness of the allocations policy which are under challenge, but on this very narrow issue, in my judgment, the Council's decision cannot be said to be unreasonable.
42. In one sense, Mr Latham is seeking to have his cake and eat it. He is saying that the claimants' needs should be assessed as at 29th August 2001, when the Part VII duty was accepted, those needs of course including the fact that at that stage the second claimant was pregnant, but he is also saying that that assessed need should be notionally carried back to the date when the claimants first made their application to the Council in August 1999 at a time when they did not have such a need.
43. The Council's refusal to approach the claimants' need for accommodation on that basis is neither unfair nor unreasonable. For these reasons, this application for judicial review is refused.

MR LATHAM: My Lord, may I just have a moment?

MR JUSTICE SULLIVAN: Yes, of course.

(Pause).

MR LATHAM: I would ask for permission to appeal. My Lord, I really raise two points. One, I would submit that there is a closer interaction between Part VII and Part VI than you have been willing to accept. Secondly, in my submission, the policy is based on the unlawful premise that you can have an orderly queue, my Lord, an issue which is going to be raised in the appeals to which my Lord has referred.

In my submission, a court could come to a different decision on the manner in which priority has been assessed, if it took the view that waiting time without assessment need is a false foundation for a policy.

MR JUSTICE SULLIVAN: Yes.

What do you say, Mr Bhose?

MR BHOSE: My Lord, I oppose that. The point is a narrow one. In my submission, my Lord has come to a clear conclusion.

The second point is that my learned friend says it is an unlawful premise that one could have an orderly queue, but in the claim form it was simply put that it was irrational to take that date as the date, as opposed to the date of application.

MR JUSTICE SULLIVAN: It is a question of when you join the queue.

MR BHOSE: That is right. He was not taking the claim form, and quarrelled with the scheme: in this regard, did not comply with the statutory reasonable preference criteria. He has tried to change the ground.

If my learned friend would wish to take it further, then he should ask the Court of Appeal for leave.

MR JUSTICE SULLIVAN: It does seem to me that, provided the transcript comes fairly quickly and I turn it around fairly quickly, you will have an opportunity to ask the Court of Appeal anyway and then the Court of Appeal can decide whether they think that looking at this will help them in looking at the overall lawfulness of the policy or not.

MR LATHAM: My Lord, indeed.

MR JUSTICE SULLIVAN: Yes.

MR BHOSE: My Lord, there are two other matters.

My Lord, during the course of my Lord's judgment, at an early stage when my Lord referred to the match lists having been supplied to the claimants on 16th March, there was reference to the areas that they had identified.

MR JUSTICE SULLIVAN: Yes.

MR BHOSE: My Lord, we did not deal with this today, but under group E, it is not open to the applicants to choose the areas. It was all 34 areas.

MR JUSTICE SULLIVAN: Yes. Then it should say simply "under the Council's 34 areas".

I think it would be wise after the words "the Council's 34 areas" to put in brackets (those in group E homeless are not entitled to choose which areas they would wish to have accommodation in).

That is right, is it not?

MR BHOSE: My Lord, that is right, yes.

Later in my Lord's judgment, I think clearly by a slip, my Lord referred to group G, and I think group E should have been referred to.

MR LATHAM: It is E throughout.

MR BHOSE: As the final matter, I would ask for my costs, on the usual basis.

MR JUSTICE SULLIVAN: Yes.

MR LATHAM: My Lord, I am publicly funded. I would ask for a Community Legal Service assessment. My Lord, the usual basis would be any order not to be enforced without permission.

MR JUSTICE SULLIVAN: Yes. Thank you very much.

The application for judicial review is refused. I refuse to grant permission to appeal to the Court of Appeal. In my judgment, this is a very narrow issue, but of course that will not prevent the Court of Appeal from giving permission if it feels that it is appropriate to look at the matter in the light of the other matters that will be examined during the course of the appeal.

So far as costs are concerned, the claimants are to pay the defendant's costs on the usual legally aided basis, that is to say, not to be enforced without leave of the Court, and there is to be detailed Community Legal Services assessment for the claimants.