CO/2436/2003 
Neutral Citation Number: [2003] EWHC 2231 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 14 August 2003
 
B E F O R E:

MR JUSTICE CRANE
 
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THE QUEEN ON THE APPLICATION OF MARYAN  AHMED MAALI
(CLAIMANT)

-v- 

LONDON BOROUGH OF LAMBETH
(DEFENDANT) 
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MR MARK LOWE QC AND MR RANJIT BHOSE (instructed by Messrs Judge Priestly, Bromley BR1 1JN) appeared on behalf of the DEFENDANT
MR ROBERT LATHAM (instructed by Messrs J Gorringe & Co, London, SW9 8BN) appeared on behalf of the CLAIMANT
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J U D G M E N T 

1.	MR JUSTICE CRANE:  There were listed yesterday four applications for judicial review in which the defendants were the London Borough of Lambeth.  In three of those applications, consent orders were agreed.  The remaining application by Maryan Ahmed Maali (whom I shall call the claimant) is the subject of this judgment.  
2.	The claim concerns Lambeth's allocation scheme for housing.  The claimant is an existing tenant who has applied for new accommodation.  The claim form sought three declarations as to the lawfulness of Lambeth's allocation scheme and their alleged failure to assess the claimant's application, together with an application for a mandatory order directing the defendant to assess the claimant's application for a transfer according to law.  There has in fact since been an assessment of the claimant for medical purposes dated 8 August 2003.  The claimant contends that that assessment is unlawful in the sense that it is unreasonable.  
3.	The issues before me can be divided into three.  First of all, was the assessment of 8 August properly carried out in accordance with the defendant's allocation scheme?  Secondly, whether it was or not, should a mandatory order be granted to make a further assessment and, if so, in what terms? Thirdly, should the wider declarations be granted?
	The background.  

4.	Part 6 of the Housing Act 1996 made provision for the allocation of housing accommodation by local housing authorities.  Section 167 provided that each authority should have an allocation scheme.  Section 167(2) provided that certain categories of people should be secured "reasonable preference."
5.	The 1996 Act did not require that such an allocation   scheme should cover transfer applicants such as the claimant.  However, Lambeth did adopt an allocation scheme, and like some other authorities their scheme did apply to transfer applicants.  On 31 January 2003, amendments to the 1996 Act made by The Homelessness Act 2002 came into effect.  For present purposes the important amendments are twofold.  First, an allocation scheme now should apply to transfer applicants.  Secondly, there are amendments to section 167 in relation to reasonable preference.  
6.	Meanwhile the defendant's allocation scheme had, in fact, run into serious legal difficulties.  In R (L & D) v London Borough of Lambeth [2001] EWHC Admin 900, Sir Christopher Bellamy QC considered the allocation scheme of Lambeth.  Sullivan J in R (Lindsay v London Borough of Lambeth [2002] EWHC Admin 809 further considered the legality of the scheme, particularly in relation to Group D, the mainstream category into which, as will be seen, the present claimant falls at present.  
7.	The effect of those decisions was that the allocation  scheme did not meet the requirements of the 1996 Act.  Those judgments were upheld by the Court of Appeal on 23 November 2002 in R (A and Lindsay) v London Borough of Lambeth [2002] EWA Civ 1084.  In that decision the Court of Appeal granted each of the claimants a mandatory order.  In relation to the claimant Lindsay, the Court of Appeal was invited by Lambeth in June of this year to consider an extension of time under the liberty to apply.  In fact agreement was reached before the Court of Appeal, but the Court of Appeal on 3 July of this year expressed certain views in a short judgment.  
8.	The effect of those decisions, however, is that the scheme does not provide the reasonable preferences required by section 167 and there is not yet in place a new scheme which would comply with the law.  It is conceded on behalf of Lambeth that the allocation scheme, as it exists, is unlawful and that it remains unlawful following the amendments introduced by the 2002 Act.  A new scheme has been adopted, but at present it is proposed to be operational only in February 2004.  
	The claimant.

9.	The claimant, as I have indicated, is a transfer applicant.  She is currently a secured tenant in a three bedroomed maisonette on the second and third floors of a four storey block.  She occupies the dwelling with her four children.  Anis, born on 23 September 1997, Mustafa, born on 30 October 1998, Ahmed, born on 21 June 2000 and Sumaya born on 13 August 2002.  There is no lift.   
10.	The claimant and Anis are said to be suffering from severe asthma.  Her case is that at times of severe asthma attacks she is in fact unable to climb stairs and always finds them difficult.  
11.	She applied to Lambeth for a transfer in January 2001.  Her complaint is that at the micro level, as Mr Latham puts it, Lambeth have failed to make a lawful assessment of her application to be approved as a Group B (Emergency) applicant.  At the macro level, she complains that the allocation group to which she has been allocated, namely Group D (Mainstream) is unlawful in that it fails to comply with the criteria specified in section 167(2).  
12.	In the scheme the allocations were to be made through several groups.  Group D, described as mainstream, requires that the applicant must qualify to join the transfer list for the housing register.  All those not assessed as being in any other group were to be placed in this group.  I pause to say that the Housing Register is no longer a statutory requirement.  
13.	Group B headed 'Emergencies' reads so far as relevant as follows: 
"A case will be considered for this group if the move is required for one of the following reasons:
• for medical reasons defined below  
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:prior. 
•  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 affecting their health very severely..." 
14.	The claimant was granted her present secure tenancy on 18 January 2001, but applied for a transfer a week later.  A series of reports was obtained from her General Practitioner.  It is unnecessary to read them all, but in a letter from Doctor H Sharif dated 3 September 2001 the doctor wrote as follows: 
"I am writing with reference to your letter dated 2 August about Maryan Maali.  I can confirm that Maryan suffers from asthma which has been particularly bad since April this year.   She has been to the Surgery on 8 occasions since April with asthma symptoms and has required inhalers, nebulisers and oral steroids from time to time.  She also had an attendance at the A&E Department.
As you are aware, she lives on the third floor with no lift and has three small children aged 3½,  2½ and 14 months.   When Maryan's asthma is bad, it would be impossible for her to climb stairs alone, let alone with children or shopping. 
I think that having to live on the third floor with no lift may well be exacerbating Maryan's asthma and affecting her general health and I think she would benefit from ground floor accommodation." 
15.	None of the subsequent letters from the General Practitioner materially alter the view expressed.  
16.	There were, it now emerges, certain assessments of the claimant.  On 8 July 2002 there was an assessment by the relevant medical officer in which no reasons were given, but a conclusion was reached that the claimant did not qualify as an emergency.  There were requests for a re-assessment on 15 July 2003, after the claim form was submitted.  Barbara Stones, the relevant medical advisor, produced what she now describes as a narrative record completed at the request of Lambeth's solicitor.  
17.	The history of assessment is now no longer of crucial  importance.  Lambeth rely on the latest assessment dated 8 August.  They do not suggest that if that assessment falls, any previous assessment would rescue their position.  In those circumstances, Mr Latham did not press his earlier submissions that it was necessary to consider the need to give reasons for decisions.  
18.	It is possible, therefore, to turn straight to the assessment dated 8 August.  Barbara Stones, described as a housing medical advisor, qualified as a registered nurse in 1969, according to her statement dated 8 August.  She qualified subsequently as a registered midwife.  She obtained a BA degree and a diploma in public policy.  She is employed by the Lambeth Primary Care Trust and seconded to Lambeth on a part-time basis.  She has previously been employed as a housing medical advisor by the Lambeth Southwark and Lewisham Health Authority to the London Borough of Lambeth and Lewisham.  She has attended lectures, courses, conferences and seminars relating to public health issues.  She has written a paper and received requests to speak on issues of health and housing at public health forums.  
19.	In my view, it is not necessary for the medical advisor, to whom medical decisions in relation to the assessments under Group B are delegated, to be a medical practitioner.  In my view, there is no basis for contending that Barbara Stones is other than a suitable person in law to fulfil that particular function.
20.	The question is whether the assessment she has produced is one that stands up to examination.  She sets out the various information that she had, including the letters from  the doctor and including the most recent witness statement from the claimant dated 5 August 2003.  Miss Stones  justifies not contacting her General Practitioner on the basis that she already had information from the General Practitioner and that she had took that into account.  She rehearses the claimant's treatment that she is still receiving for asthma.  She pointed out that the claimant has not had to go to hospital in the past 12 months which appears to indicate that she was going to get some control of her asthma.    
21.	She goes on: 
"She states that she goes to stay with a friend when her asthma is particularly bad, which is understandable because she would require assistance with child care.  She could also fear being alone during a asthma attack with only the children to call on for assistance.  If she was to move to a  different property she may still seek out assistance and go to stay with a friend." 
22.	She deals with the claimant's back pain.  She points out that she was attending physiotherapy, but had not been referred to a specialist.  She later points out that the claimant did not indicate that she took analgesics for pain relief in respect of that back pain.
23.	Miss Stones refers to the difficulties of Anis in relation to asthma.  It is clear from the final conclusions that she was considering the medical conditions of the household, not simply of the claimant.  In my view, the assessment is not open to attack on the basis either that Miss Stones did not adequately consider the claimant's difficulties with her back, or that she did not adequately consider the difficulties of Anis with asthma.  
24.	She goes on in this way in relation to the asthma: 
"This medical assessment includes all the above information which I believe gave  me adequate information on which to base this assessment.  In my assessment I am looking for an indication of the severity of the household's health problems and how their housing would effect their ability to carry out normal activities of daily living.  In a case of asthma I am looking for indicators of severity of the condition, as a large number of the population suffer from asthma at varying degrees." 
25.	She points out what she would expect in relation to someone with very severe asthma by way of attending a hospital specialist and the medication that could be expected to be taken.  
26.	She then goes on:
"An important factor in a person gaining control of their asthma is the need to exercise as increased lung capacity can improve lung functioning.  The fact that Mr Maali has stairs to climb is actually a positive aspect to her gaining control of her asthma.  Therefore, I did not consider this aspect of her current accommodation detrimental."  
27.	She quotes Miller Keenes' Encyclopedia of Medicine (1998):
"Exercises that improve posture are helpful in maintaining good air exchange.  Special deep breathing exercises can be taught to the patient so that elasticity and full expansion of lung and bronchial tissues are maintained.  Some asthmatic patients have developed a protective breathing pattern which is shallow and ineffective because of the fear that deep breathing will bring on an attack of coughing and wheezing.   They will be help in breaking this pattern and learning to breathe deeply and fully expand to the bronchial and lungs." 
28.	In her assessment Miss Stones finally says this: 
"Taking into account all the above information, and the fact that Doctor Saini stated that the exacerbation were intermittent, I do not consider the medical condition of this household to be of such severity to recommend emergency listing.  The information given by Mrs Maali relating to her back problem does not indicate that she had been referred for any specialist treatment and a specific diagnosis made of these complaints.  Back pain can be alleviated by analgesics of various strengths, although Mrs Maali does not indicate that she takes any analgesics for pain relief." 
29.	Mr Latham submits that it is unclear what test Miss Stones was applying in making her assessment.  I am satisfied on the wording of the assessment, in comparison with the allocation scheme in relation to Group B, that she was applying the test set out in the allocation scheme for listing under Group B.
30.	Turning to the assessment itself Mr Lowe QC, on behalf of the London Borough of Lambeth, submitted that this was a decision she was entitled to reach and that it was in no way irrational.  On the basis of Mr Latham's submission, I conclude that, in fact, there are two serious flaws to her assessment.  
31.	In her assessment she includes the conclusion that Mrs Maali states that she goes to stay with a friend when her asthma is particularly bad.  But Miss Stones attributes that, it appears to me, to the need for assistance with child care rather than, primarily, to the difficulty indeed according to the information available impossibility, of reaching the third floor by climbing stairs when the asthma is bad.  
32.	Miss Stones specifically indicates that the information she had was adequate.  She gives no basis for rejecting the information from the claimant that it was because of an inability on occasions to climb the stairs that she went elsewhere, or for the doctor's support of that.  It is of course perfectly true that the doctor would be relying on what the claimant told the doctor about whether she could climb the stairs.  The doctor could be expected to be well aware of the severity of the asthma and to be able to assess whether that was a likely situation.  While it is true that Miss Stones does give some reasons for doubting the severity of the asthma, I do not consider that those reasons rescue her conclusion.  Thus she failed to take into account the inability to climb to the third floor and substituted a basis for going to the friend for which there was in fact no basis at all on the information before her.
33.	The second serious flaw in the assessment appears to me to relate to the way in which she dealt with the relationship between the need for exercises and training in breathing and the ability to climb stairs.  I do not criticise her use of a medical encyclopedia  in understanding what a person with asthma might need by way of exercises, but I see no basis for concluding that because exercises and training in improved breathing methods are beneficial, the climbing of stairs is a positive aspect of gaining control of her asthma, or indeed that there is any necessary correlation between the two.  She ignores the fact that when the claimant is climbing stairs she presumably has her youngest child, who is just 12 months old, to carry and on many occasions, as the doctor had pointed out, she must be carrying shopping as well.  One cannot help wondering how many flights of stairs the claimant would be expected to climb before the process ceased to be beneficial and became detrimental.
34.	I therefore conclude that as an assessment of entry to Group B, this assessment was so flawed as to be Wednesbury  unreasonable.  It would follow that if it were not unlawful in the sense that the scheme as a whole is unlawful, it would be unlawful for reasons of irrationality.  
35.	I turn to the other issues which Mr Latham has grouped as macro level issues.  I have to consider whether I should make a mandatory order in the form that was ordered in relation to the claimant Lindsay by the Court of Appeal, namely that an assessment should be carried out in accordance with section 167(2).    
36.	On one view, of course, any allocation at the moment must be unlawful because there is no lawful scheme.  Nevertheless, the Court of Appeal did make a mandatory order to make the allocation even in the absence of an allocation  scheme.  That begs the question, however, whether it should be to carry out an assessment in accordance with 167(2).  
37.	Mr Latham submitted that if on re-assessment the claimant was found not to qualify for Group B, nevertheless if she had a medical condition and in other ways qualified under section 167, she should be compared with any Group D applicant who was being made an offer of accommodation.   He points out that any Group D applicants who are being offered accommodation are likely to be people who have less rather than more justification for the allocated accommodation.
38.	I need to digress temporarily to review the present situation that faces Lambeth.  The report on Housing Allocations 2002 under its recommendations at paragraph 4.11 noted that Lambeth had 23,000 applicants of which 9,500 were transfers and 12,200 were non homeless new  applicants.  It pointed out that homelessness in Lambeth was at its highest and within the last year only 2,200 lettings had been made.  The problems of such an inner city authority are plainly immense.  I agree with Sullivan J in the case he decided that the acuteness of the problem faced by Lambeth  makes it more rather than less important than there be a fair system of allocation, and one that complies with the Act.  Nevertheless in the short term, one has to look at the realities that Lambeth at this moment face.  
39.	The central re-housing services manager, Miss Linehan, in her statement describes the situation that faced Lambeth following the decision of the Court of Appeal.  They did not seek to appeal that judgment.  They set about a searching revision of the scheme and they informed local firms of solicitors, including this claimant's solicitors, of the way in which they  proposed to proceed.  They did, in fact, adopt a new scheme as I have indicated.  It was originally intended to be implemented by September 2003.  However by May 2003, it became clear that this was no longer feasible, and the target date for the new scheme going live is the beginning of February 2004.  Miss Linehan sets out the reasons for that delay.  They have in general terms a familiar ring in that the IT requirements are apparently causing the problem.  The fact is that there is nothing to contradict Lambeth's assertion that it is not practicably feasible to adopt the scheme prior to 2004.  In those circumstances, Mr Latham submits that there is nothing in the short term that Lambeth can do, but in cases such as that of this claimant attempt to assess by reference to, for example, category Group B. 
40.	It seems to me that Mr Lowe is correct in saying that the suggestion of Mr Latham, that the claimant should be placed in what would amount to a sub group of Group D would simply not be workable.  For one thing, Lambeth have no details of applicants in Group D who are the mainstream group.  It does not seem to me that a quick comparison, which Mr Latham suggested would be possible, would in fact be possible.  While it would be true that there would be relatively few of those on the list requiring the kind of accommodation that this claimant requires for this household, I am satisfied that there is really no workable basis for    any interim or temporary scheme of the kind suggested.
41.	Moreover, if the claimant was treated in some special way in response to a mandatory order which should be assessed in accordance with section 167(2),  it would mean that any applicant, if they had the energy and knowledge to apply to the court, could obtain such an advantage and the court would be creating a kind of temporary ad hoc scheme on the basis of those who happened to apply.  
42.	The Court of Appeal in the short judgment of Pill LJ on 3 July 2003 expressed concern about the delay in implementing the new scheme.  As far as general declarations are concerned as to the lawfulness or unlawfulness of the present situation, it does not seem to me that any declaration I granted would add anything to what has already been decided by the Court of Appeal.  It was submitted by Mr Latham that it might be of assistance to the district auditor or the ombudsman if they came to consider the situation.  The Court of Appeal pronounced on the unlawfulness of the present position.  I see no advantage in further declarations.  
43.	For similar reasons, I am not prepared to grant a mandatory injunction to assess the claimant in accordance with the criteria in section 167(2), although that the Court of Appeal did make such an order in 2002.  But for the reasons I have given, looking at the situation today, it seems to me that Lambeth were unable in any practical way, or indeed any fair way, to implement such an order.  
44.	Should a mandatory order in some form nevertheless be granted?  In some ways it is curious that the court should consider ordering Lambeth to operate even a part of the scheme that has declared to be unlawful.  However, if the court makes an order then the relevant assessment of allocation will be approved by the court, and hence in that sense lawful.  
45.	It may well be if there is a new assessment that there would need to be further information from the General Practitioner.  I have decided that I am prepared to grant a mandatory order for a re-assessment in relation to Group B.  It is a very limited category and anyone who qualifies against the very high threshold set by the test of Group B would qualify quite plainly under section 167(2) for a reasonable preference.
46.	It follows, therefore, that if on re-assessment the claimant is found to qualify for Group B, then that will meet her requirements.  In my view, there will be no real risk placing her ahead of others who should be preferred to her, but if on re-assessment she is found not to qualify for Group B she will, I accept, not be receiving the reasonable preference that section 167(2) requires for her.  
47.	However, I see no practical way in the present situation that would be fair not only to her but to others to achieve that she should receive the reasonable preference that section 167(2) requires.  As a matter of discretion, therefore, I am not prepared, although with some regret, to grant a mandatory order other than the limited form which I have indicated.
48.	Mr Latham, if that order can be reduced to a suitable form, I can initial it. 
49.	MR LATHAM:  My Lord has indicated the mandatory order which he is minded to make.  I would ask for a quashing order in respect of the assessment of 8 August. 
50.	MR JUSTICE CRANE:  Yes, or a declaration.  
51.	Mr Lowe, do you have any comments?  I do not think a quashing order is in the claim form.   although it has been mentioned. 
52.	MR LOWE:  I would not object to a quashing order.  It would seem to be the appropriate form of relief.  With regard to the mandatory order, I was going to suggest to your Lordship a period of 28 days.   
53.	MR JUSTICE CRANE:  That seems sensible.
54.	MR LATHAM:  I would certainly not oppose that.  It is no part of my Lord's order.  It may be well that my solicitor also asks the defendant to asses her under Group F.  She can make the application presumably. 
55.	MR JUSTICE CRANE:  She can make that.  That is not part of my order.  That is not, as I understand it, what she was being assessed for by Miss Stones.  
56.	MR LATHAM:  My Lord, indeed. 
57.	MR JUSTICE CRANE:  That is a matter for you to take up with Lambeth if you wish.
58.	MR LATHAM:  My Lord, I would ask for my costs.  Even I have only partially succeeded, my Lord will be aware of the late stage at which evidence has been served and the decision of 8 August post dated my skeleton.  As far as the issue upon which I failed, it was really because my Lord felt unable to grant any realistic relief. 
59.	MR LOWE:  I would say in respect of the amount of costs we should pay to the claimant, there should be some credit for the fact that really it is the wider relief that he has sought.  Certainly I am here to defend what otherwise be a rather routine judicial review claim.  It was because of the implication of the relief that this claim was described as serious as it is.     
60.	MR LATHAM:  I simply say in response this of course is the background of four cases, of which only effectively one was argued albeit that two were settled on Tuesday and the third was settled at 10:45 on Wednesday.  
61.	MR JUSTICE CRANE:  Yes, I shall grant costs.  Although I appreciate that ultimately the claimant has not succeeded on the wider claims, particularly on the wider form of mandatory order that was sought, that is because of practicalities for which, ultimately, the defendants must be regarded as responsible.  It seems to me not unreasonable that the claimant canvassed those matters with the court.  Whether on another occasion, this court having reached that conclusion, any other claimant would be received sympathetically so far as costs are concerned in canvassing those matters is a different matter. 
62.	MR LOWE:  I am grateful for those remarks.  
63.	My Lord, my final application is for a community legal service assessment. 
64.	MR JUSTICE CRANE:  Has a certificate been filed? 
65.	MR LATHAM:  Indeed.  I hope that all the bundles had the relevant legal aid certificates. 
66.	MR JUSTICE CRANE:  They probably have.  I confess I did not on concentrate on that.
67.	MR LATHAM:  Perhaps you can leave it to me.  It certainly has been filed. 
68.	MR JUSTICE CRANE:  They have been.