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 WC2A 2LL
		11 September 2007

1. THE DEPUTY HIGH COURT JUDGE:

Introduction

2. In this application the claimant, Mr Omar Ahmad, complains of the defendant council's failure to make a lawful determination of his application for accommodation under Part VI of the Housing Act 1996. He seeks relief both in respect of the individual decision made on his claim and, more generally, in respect of the legality of the allocations policy presently applied by the defendant.
3. The salient facts are that Mr Ahmad and his family have been assured tenants of a two-bedroom ground floor property of which the landlord is a registered housing association. The family presently occupying the property are the claimant, his wife and four children. The claimant and his wife share a bedroom. The youngest child, who is Huzaif, sleeps in that bedroom. The three older children are Shaira, born in January 1993, Riddah born in May 2002 and Amaan born in October 1997. The second bedroom is thus shared by two girls aged 14 and 5 and a boy who is nearly 10 years of age. There is no doubt that to have six people occupying a two-bedroom flat is serious overcrowding in the ordinary sense of the word. It has been pointed out that it may not be statutory overcrowding under the Housing Act 2000 because that brings other rooms into consideration. The defendant, in its decision letter of 13 June 2006, accepts that the present house is overcrowded and attracts priority. I understand that if the claimant were to be made a direct offer of housing today by the defendant council he would be offered at least a three-bedroom house.
4. The claimant's problems however are not confined to these matters alone. In addition to living in crowded accommodation, one or more members of the claimant's family have health problems that affect their housing needs. The daughter Shaira's problems are the most marked and have been accepted as such. She was disabled from birth and requires care 24 hours a day, seven days a week. She suffers from neurological disorder, global development delay, hydrocephalus, spinal scoliosis, epilepsy and reflux. As a result of this combination of problems, she is a wheelchair user. She has a standing frame and other aids such as an electric bed, bath aids and chair, special buggy, special seating and physiotherapy mats. She is fed by a gastronomy tube. She suffers partial hearing. She suffers from epileptic seizures, screaming fits, vomiting and irregular sleep. It is undisputed that for all these reasons her medical condition impacts upon her housing needs and those of her siblings and she requires her own bedroom.
5. Of the siblings her brother Amaan is the most affected by sharing a bedroom with Shaira. There is evidence that the head teacher of his school is concerned with the constant tiredness he shows at school which is attributed to the disturbed nights he has sharing a room with his siblings. He also suffers from allergies, general behavior disorder and incontinence. His allergies require him to occupy a cool, well ventilated room which, it is noted, is at odds with the needs of Shaira. There is some possibility that his general behavior disorder may be learned from Shaira. He cannot have a carpet in his bedroom. The response to his allergies requires special bed linen and a dustproofing strategy. By reason of his age and medical condition, Helen Thian, an occupational therapist engaged by the claimant, reported in November 2005 that Amaan, too, needed his own room. Miss Thian found they needed four-bedroom accommodation, with the two youngest children sharing and the two elder ones having separate rooms.
6. The claimant is not in the best of health. His general practitioner reported that he has been chronically depressed since the year 2000 and needs psychological therapy that he is now receiving. It is said that his family's housing circumstances exacerbates his health needs.
7. On 3 August 1999 the claimant applied for accommodation to the defendant because his own landlord had insufficient accommodation to address his housing needs. At that stage the claimant and his wife had just two children, and the defendant operated a points-based housing allocation scheme under which the claimant and his family attracted a high priority. The court has been told that no suitable offers of accommodation were made. The offers made were considered unsuitable.
8. From September 2002 the defendant operated a new allocation scheme. It is the application of that scheme to the claimant's case which is the subject of this application for judicial review. The document describing the defendant's allocation policy is a lengthy one and is very detailed. It takes up some 126 pages in the trial bundle. It is relevant to note that this is the seventh version of the policy formulated since 2002 and this version was adopted in February 2005. Clearly a lot of work has gone into the formation of the policy against the background of developing jurisprudence.
9. At this stage in the judgment it is only necessary to draw attention to certain essential features that are set out in Part II of the policy. First, allocations are made either on a choice-based lettings basis, known as CBL, or by direct offers to which I shall refer as DO. CBL allocations are made by circulating details of available property becoming available to all applicants who are entitled to bid. The circulation is done electronically and by a property bulletin, the latest example of which I was shown. This enables claimants to bid for the properties they consider most suitable to their needs. When all eligible bids are made they are assessed by the defendant and awarded to the successful bidder on the basis of the length of time the claimant has been registered on the housing list.
10. The CBL allocations are presently available to those who are classified by the defendant as priority home seekers under the scheme and also to those who are tenants seeking a transfer. It has been pointed out that other parts of the policy restrict the transfer group to five per cent of those allocated under the CBL scheme. Subject to this percentage restriction, the priority home seekers and transfer groups are treated the same when it comes to the assessments of bids for advertised properties.
11. The priority home seeker limb of the CBL scheme is restricted to those who can fill one or more of the reasonable preference criteria under the Housing Act 1996, Section 167, the construction of which is central to the issues before the court today.
12. The advantage of a CBL scheme is that it is a transparent and open process demonstrating what properties are available and enabling applicants to match their assessment of needs and preferences to what is available. The disadvantage is that it can take a very long time for waiting list priority to result in a successful bid by one of the entitled applicants.
13. At the hearing of this claim it was shown that the property the claimant bid for in September 2006 had 102 people ahead of him on the CBL housing queue. The successful bidder first registered in June 1991. A property he had bid for in August 2006 had 160 people ahead of him, and the successful bidder was first registered on the housing list in 1997. In the same month another property that the claimant bid for had 158 people ahead of him, and the successful bidder was registered in 1987. It is apparent therefore that under the CBL scheme, as operated, it may be a very considerable time before the claimant is successful in his bids for accommodation suitable for his family with their many needs. Other properties the claimant was unsuccessful in bidding for were allocated under the DO part of the scheme, to which I will now turn.
14. The DO scheme is available to different classes of persons, primarily, and first, to those with additional preference under the policy, also called those with emergency re-housing needs by reason of harassment or extreme medical or social grounds. Second, the DO scheme is available to those who have multiple needs as defined by the defendant in its policy. It seems that those who are accepted as having sufficient multiple needs are then treated as entitled to additional preference. Third, the DO scheme is available to those who have been transferred because they are under-occupying present accommodation. Fourth, those who have been decanted from their existing property by reason of management action taken by the defendant. And, finally, people who are eligible on special schemes.
15. The advantage of allocation by the DO scheme is that it is not dependent on priority on the waiting list and can trump CBL bids, as indeed has happened. The disadvantage, by comparison with CBL, is that it does not offer the claimant choice either at all or to the same extent as CBL schemes. Applicants do not bid for properties under the direct offer scheme.
16. Comparing only priority housing applicants under the CBL scheme and additional preference claimants under the direct offer scheme, Mr Latham, who appears for the claimant, submits that this means that those with the greatest housing need have the least choice in respect of accommodation, yet choice was considered an important part of the 2002 legislative policy, and the adoption by local authorities of choice-based schemes is encouraged by central government.
17. With this broad description of the defendant's scheme, it is necessary to return to how the 1999 application by the claimant has been treated over the last 8 years to explain the challenge now brought in this application for judicial review. In April 2004 the defendant's medical assessment officer decided that the information then known about Amaan did not bring him within the reasonable preference criteria established by Section 167 of the Housing Act. A similar decision was made in respect of the claimant in 2005. Those decisions have been maintained most recently by the decision letter of 30 June 2006. The position remained the same until shortly before the hearing of the case. That was despite a pre-action protocol letter sent first in April 2005 and on occasions thereafter.
18. Miss Thian's report, to which reference has been made, was sent to the defendant at the time it was drawn up and the GP's report sent on various occasions and the issue of claim form in September 2006.
19. What the claimant seeks is a quashing order of the negative medical assessments of the claimant and Amaan and the making of fresh decisions in respect of their claims to reasonable preference. Further they seek to be allocated under the multiple needs limb of the direct offer policy. They seek to be assessed to have additional preference by reason of having three members of the household meeting the reasonable preference criteria on medical grounds as well as overcrowding. The claimant further contends that people who are assessed as having additional preference should gain priority over those with merely once claim for reasonable preference, but should not be denied a choice or the ability to bid for accommodation.
20. These applications for judicial review have been argued on two bases. First, that the individual medical assessments for the claimant and Amaan are flawed, inadequate reasons being provided as to how assessment was made and the conclusion reached. Second, even if lawful decisions re-assessing them as having reasonable preference along with Shaira had been made, the scheme in its present form is unlawful and fails to discharge the statutory duty in the housing legislation to promote schemes that comply with Part VI of the Housing Act.

The Challenge to the Medical Assessments

21. In the event, little needs to be said about the first part of this challenge. The defendant does not seek to defend these decisions as a rational, lawful exercise of their statutory function. In the skeleton argument they have served they have undertaken to make fresh decisions within 28 days of judgment in the event of the court setting it aside and to give proper reasons for any adverse decision to be made in the future. It was indicated that the defendant made that offer for the first time in the skeleton argument served on 30 August 2007, which they have asked the court to accept as detailed grounds.
22. It is acknowledged that the defendant has been seriously remiss in responding to this matter. It should have filed an acknowledgment of service by 25 October 2006 but failed to do so. It further failed to do so by 28 March 2007 despite indicating that they intended to do so. As a result of these failures at the permission stage, permission was granted on the papers in default. The defendant then failed to file detailed grounds for contesting the matter by 27 April 2007 and that disentitled it to oppose the granting of relief under CPR 54.9. It failed to file any evidence at all in any aspect of the case. Following the listing of this application on 7 August for final hearing on 5 September 2007, the defendant made no response at all as to its intention as to the application until the skeleton argument was served on 30 August.
23. At the outset of this hearing the defendant sought permission to defend the part of the claim that challenged the allocation policy generally, but not the individual decisions. Having regard to the need for assistance on a matter as important as the legality of the housing allocations policy, the court granted permission for the defendant to make written and oral submissions on this issue alone. However the consequence of bringing the defendant into the case for the first time on the day of the hearing was that the original time estimate proposed was completely inadequate. In the light of listing obligations and counsel's availability, the hearing continued part heard on 5 September and counsel agreed to complete the rest of the case by submissions in writing, sequentially prepared and lodged with the court by 10 September. The defendant's inactivity in responding to this claim resulted in depriving the court of any evidence it may wish to have filed as to how the scheme operated in general and how it worked, as well as reducing the opportunity for oral debate in support of its submissions.
24. In the circumstances I conclude that the claimant has made out his case to quash the medical assessment decisions made relating to both the claimant and his child Amaan and last made on 30 June 2006. In my judgment, these decisions are insufficiently reasoned as to the criteria applied as to how medical need can or fails to come within the doctrine of reasonable preference and how the evidence has been related to the criteria that are applied by the defendant. Both the claimant and Amaan have presented a medical claim for priority which needs careful evaluation and needs to be the subject of reasoned judgment as to how, if at all, it impacts on priority. The outcome of that evaluation is for the defendant.
25. As indicated, in the event of decisions being set aside, the defendant has offered an undertaking to re-consider them within 28 days of this judgment. I will consider the matter further when I have dealt with the other limbs and considered relief more generally. It is a matter of some importance that these cases are now speedily decided. The matter has proceeded for some years without being satisfactorily addressed by the defendant. It is now necessary that they fulfil their obligations in accordance with the law.

The Challenge to the Scheme

26. This leaves the issue on which the defendant has permission to make representations to defend, namely whether the allocations policy as a whole, against which, at present, these claims fall to be re-assessed, is unlawful in any material respect.
27. In his skeleton argument, oral and supplementary written submissions, Mr Latham, for the claimant, submits that the policy is unlawful in essentially three respects. First, the additional preference and multiple needs groups are excluded from the CBL scheme rather than being afforded priority within it. He submits they are not afforded choice when they ought to be and they must accept direct offers.
28. Second, those who do not meet the additional need or multiple needs threshold have their bids determined by the time on the waiting list rather than by a global assessment of their housing needs or medical core welfare grounds. The claimant submits this follows from the fact that there is no provision in the policy for allocating priority within the reasonable preference groups or between the reasonable preference and transfer claimants for CBL. If there is a need amounting to a multiple reasonable preference claim for a higher priority for housing based on the cumulative needs of a family as a whole, it is not possible, it is said, to address these under the scheme. Although the defendant has a multiple needs policy to attract additional preference indicated, this does not sufficiently address the lack of priority because under the multiple needs policy a claimant will only get into additional preference category on the points basis of that part of the scheme if three members of the household meet the criteria for reasonable preference.
29. The claimant therefore submits that under the present policy, for example, it would not materially alter the family's priority if Amaan's needs were to be assessed on the reasonable preference criteria and the claimant's were not. In addition to Shaira, two other members of the family would need to meet this criterion before claiming the higher priority by being elevated to a direct offer.
30. Thirdly, it is complained that there are no sufficient indications in the detailed scheme of the policy of the criteria adopted by the defendant of the medical or social needs that result in priority or who decides whether the criteria are met and how.

The Statutory Context

31. In order to evaluate these submissions, it is necessary to examine the statutory scheme and the case law under Section 167 of the Housing Act, both before and after the coming into force of the amended scheme under the Housing Act 2003. By way of introduction, it is apparent that the issue of how scarce housing resources in the hands of local authorities are allocated is one of the key political and social problems they must make a judgment about. In particular, the extent to which available housing is swallowed up in discharging duties to homeless persons, leaving no provision for those who have homes but ones that are inappropriate for their needs, has been a matter of intense public debate concerning ministers, local authorities and Parliament alike.
32. That is the background for the changes of the legislation. The legislation has developed in three stages. First, from 1985 to 1996 local authorities had broad discretion as to how they should compile their housing lists combined with duties to house those they determined to be homeless or in need. Section 22 of the Housing Act 1985 required that they give reasonable preference to homeless persons. This appears to have been the introduction of the term "reasonable preference" to housing allocation law. The cases indicate that there were some early challenges to particular aspects of the scheme, as to how "reasonable preference" could be addressed by a points-based scheme and in what circumstances factors such as conduct like unreasonable behaviour could affect allocation.
33. In 1996 a new regime came into being with Part VI of the Housing Act 1996. This imposed a duty by Section 159 (1) on a local authority to comply with this Part of the Act in allocating housing accommodation. But by Section 159 (7), once it has complied with the statutory duty, it is free to allocate housing as it considers appropriate. The key duty under Part VI, as indicated, is Section 167. I will read Section 167 (1) and (2) before new sections were added:

"(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 who are homeless (within the meaning of Part 7);

(b) people who are owed a duty by any local housing authority under section 190 (2), 193 (20 or 195 (2) (or under section 65 (2) or 68 (2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192 (3);

(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;

(d) people who need to move on medical or welfare grounds [(including grounds relating to a disability); and

(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or others).

The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of people with urgent housing needs)."

34. There have been a number of judicial decisions reviewing allocation schemes for compliance with the duty to secure that the scheme shall be framed so as to secure that reasonable preference is given to people who are within one of the four descriptions (a), (b), (c) or (d).
35. For the claimant, it is contended that the most significant of these decisions is the judgment of Mr Justice Lloyd Jones in R (On the Application Cali and Others) v London Borough of Waltham Forest [2006] EWHC 302 Admin, [2007] HLR 1. I will return to that case in one moment.
36. The third phase of the statutory scheme took place on 31 January 2003 when the Homeless Act 2002 amended Part VI of the 1996 Act. First, it repealed Sections 161 to 165 that were concerned with cases where special conditions relating to priority could be made. Secondly, it added in new clauses to Section 167, notably Section 167 (1A) which reads:

"(1A) The scheme shall include a statement of the authority's policy on offering people who are to be allocated housing accommodation -

(a) a choice of housing accommodation; or

(b) the opportunity to express preferences about the housing accommodation to be allocated to them."

37. Further - and material to Mr Baker's submissions in resisting the challenge of the scheme - it added Section 167 (2A):

"(2A) The scheme may contain provision for determining priorities in allocating housing accommodation to people within sub-section (2); and the factors which the scheme may allow to be taken into account include -

(a) the financial resources ..... ;

(b) any behaviour of a person ..... ; and

(c) ..... local connection ..... "

Further provisions about those matters were added by Sections (2B), (2C), (2D) and (2E) and (4A) as follows:

"(2B) Nothing in sub-section (2) requires the scheme to provide for any preference to be given to people the authority have decided are people to whom sub-section (2C) applies.

(2C) This sub-section applies to a person if the authority are satisfied that -

(a) he, or a member of his household, has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority; and

(b) in the circumstances at the time his case is considered, he deserves by reason of that behaviour not to be treated as a member of a group of people who are to be given preference by virtue of sub-section (2).

(2D) Sub-section (8) of section 160A applies for the purposes of sub-section (2C) above as it applies for the purposes of sub-section (7) (a) of that section.

(2E) Subject to sub-section (2), the scheme may contain provision about the allocation of particular housing accommodation -

(a) to a person who makes a specific application for that accommodation;

(b) to persons of a particular description (whether or not they are within sub-section (2)).]

(3) the Secretary of State may by regulations -

(a) specify further descriptions of people to whom preference is to be given as mentioned in sub-section (2), or

(b) amend or repeal any part of sub-section (2).

(4) The Secretary of State may by regulations specify factors which a local housing authority shall not take into account in allocating housing accommodation.

[(4A) The scheme shall be framed so as to secure that an application for an allocation of housing accommodation -

(a) has the right to request such general information as will enable him to assess -

(i) how his application is likely to be treated under the scheme (including in particular whether he is likely to be regarded as a member of a group of people who are to be given preference by virtue of sub-section (2)); and

(ii) whether housing accommodation appropriate to his needs is likely to be made available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him;

(b) is notified in writing of any decision that he is a person to whom sub-section (2C) applies and the grounds for it;

(c) has the right to request the authority to inform him of any decision about the facts of his case which is likely to be, or has been, taken into account in considering whether to allocate housing accommodation to him; and

(d) has the right to request a review of a decision mentioned in paragraph (b) or (c), or in Section 160A (9), and to be informed of the decision on the review and the grounds for it.]

(5) As regards the procedure to be followed, the scheme shall be framed in accordance with such principles as the Secretary of State may prescribe by regulations.

(6) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.

(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."

38. Mr Baker, in reliance in particular upon Section 167 (2A), submits that this new provision places some doubt on the reasoning in a number of previous judgments of this court, and in particular the decision in Cali where it was not cited. He submits, accurately, that I am not bound by Cali as it is a decision of a first-instance court; further that I should not give it weight because it did not consider the amended statutory regime and is not necessarily consistent with it.
39. In addition to the statute there is the Code of Guidance. Under both the original 1996 Act and the 2002 amendments, the Secretary of State has issued guidance under Section 169 to which the local authority applying the Act must take account. The Secretary of State is now the Secretary of State for Communities and Local Government. At the time it was the Office of the Deputy Prime Minister.
40. Mr Latham submits that the statutory scheme as applicable to this case continues to require that reasonable preference is given to people occupying overcrowded housing or otherwise living in unsatisfactory housing conditions required by Section 167 (2) (c) and people who need to move on medical or welfare grounds required by Section 167 (2) (d). Both limbs apply to this family at present. If either the claimant or Amaan or both are re-assessed as having reasonable preference on medical grounds, there may also be a multiple persons claim, as well as a claim for priority on the ground of reasonable preference under two limbs of Section 167 (2).
41. Mr Latham submits that the case law culminating in the decision in Cali makes it plain that the basis for reasonable preference is cumulative and that those with greatest cumulative need should be awarded greater priority by way of reasonable preference under the allocation scheme that the statute requires local authorities to follow. He supports that submission by reference to paragraph 5.9 of the 2002 Code of Guidance:

"5.9 It is important that the priority for housing accommodation goes to those with greater housing need. In framing their allocation scheme to give effect to s.167 (2), housing authorities must have regard to the following considerations -

a) the scheme must include mechanisms for;

i) ensuring that the authority assess an applicant's housing need, and for

ii) identifying applicants in the greatest housing need

(b) the scheme must be framed so as to give reasonable preference to applicants who fall within the categories set out in s.167 (2), over those who do not;

c) the reasonable preference categories must not be treated in isolation from one another. Since the categories can be cumulative, schemes must provide a clear mechanism for identifying applicants who qualify under more than one category, and for taking this into account in assessing their housing need;

d) there is no requirement to give equal weight to each of the reasonable preference categories. However, housing authorities will need to be able to demonstrate that, overall, reasonable preference for allocations has been given to applicants in all the reasonable preference categories. Accordingly it is recommended that housing authorities put in place appropriate mechanisms to monitor the outcome of allocations; and

e) a scheme may provide for other factors than those set out in s.167 (2) to be taken into account in determining which applicants are to be given preference under a scheme, provided they do not dominate the scheme at the expense of those in s.167 (2). (See para 5.25 below).

Otherwise, it is for housing authorities to decide how they give effect to the provisions of s.167 (2) of the 1996 Act in their allocation scheme."

42. Mr Latham stresses 5.9 c) -

"the reasonable preference categories must not be treated in isolation from one another. Since the categories can be cumulative, schemes must provide a clear mechanism for identifying applicants who qualify under more than one category, and for taking this into account in assessing their housing need."

43. Mr Baker, by contrast, relies upon d) -

"there is no requirement to give equal weight to each of the reasonable preference categories. However, housing authorities will need to be able to demonstrate that, overall, reasonable preference for allocations has been given ..... "

and -

"e) a scheme may provide for other factors than those set out in s.167 (2) to be taken into account ..... provided they do not dominate the scheme at the expense of those in s.167 (2) ..... "

The Authorities

44. Mr Latham submits that his submissions about the need for cumulative assessments is supported by previous authorities. The first is R v London Borough of Islington ex p Reilly and Mannix (1998) 31 HLR 651, decided by Mr Justice Richards. This was a case about a policy for transfer of secure tenants to different housing, and therefore it was recognised concerned the exercise of a discretion that fell outside Part VI. But it was said nevertheless that some guidance as to rationality was derived from Part VI factors. The scheme under review was essentially a point-based scheme with some residual discretion to vary the award of points. In that context, Mr Justice Richards, as he then was, said this at page 665:

"In reaching my conclusions on this issue, I have taken careful account of the fact that the court is concerned with a broad discretionary power and must be careful not to impose upon the authority, under the guise of judicial review, judgments that are properly those of the authority or obligations that Parliament has refrained from imposing ..... (e.g. by requiring it to determine priorities by reference solely to housing need or to give reasonable preference to transfer applicants falling within defined categories of need). The principles of public law nevertheless have an important role to play in determining whether the authority has exercised its discretion lawfully."

He concluded further down the page:

"In my judgment, however, the problem about the scheme goes deeper than that. In determining priorities for the allocation of available housing accommodation to transfer applicants, the authority has decided to place very considerable weight on the respective housing needs of applicants. That is evident from the wording of the Allocations Scheme, from the authority's evidence relating to the scheme and indeed from the authority's eventual decision in relation to the present applicants. It is also evident from the fact that the authority has decided to apply the same system for determining priorities to transfer applicants as to waiting list applicants to whom the 'reasonable preference' provisions of Part VI of the 1996 Act and the related paragraphs of the Code of Guidance apply. Thus far, the approach is entirely understandable and reasonable. Of course, housing need is not the only factor taken into account. Waiting time is another; management considerations (decants, etc.) are relevant and may be overriding in appropriate cases. Housing need is, however, a very important factor. The question then arises, however, whether the authority's approach to the assessment of housing need is a rational approach. That is where the deeper problem seems to me to lie."

Having reviewed the particular scheme, he concluded:

"The conclusion I reach is that the authority's present allocations scheme, in failing to make adequate provision for a composite assessment of housing need, is one that no reasonable authority would adopt and is unlawful for that reason."

45. The question of cumulative assessment was next considered in the second case to which attention has been drawn - R v City of Westminster ex p Al-Khorsan (2001) 33 HLR 6. This was a decision of Mr Justice Latham given in December 1999. It did concern a Part VI scheme in which paragraph 2.3 of the previous Code of Guidance applied. Mr Justice Latham said at page 81:

"The various categories of need identified in section 167, and in the 1997 Regulations, are not to be treated, it seems to me, as separate watertight compartments. They identify needs which are capable of being cumulative. And it is only in that way that a proper judgment can be made of the respective needs of persons on the list."

He went on to refer to Mr Justice Richards' judgment in Islington. Both these authorities were considered and approved by the Court of Appeal in R (A) v Lambeth London Borough Council, R (Lindsay) v Lambeth London Borough Council, [2002] EWCA Civ 1084, (2002) HLR 57. It should be noted that the decision was given after the Housing Act 2002 had been enacted but before it came into force.

46. I understand that when the Code of Guidance was issued in October it took into account the approach of the Court of Appeal in this case.
47. The particular scheme was declared unlawful because it included people to whom no reasonable preference had been given and for other reasons by Mr Justice Collins giving the leading judgment in the Court of Appeal (identified at pages 10 to 14). At paragraph 18 he said as follows:

"18 I now turn to consider the argument that, even if the Group (particularly group D) comprised only those entitled to preference, the scheme would still be unlawful because it fails to provide a means of giving priority to those who fall within more than one category (the so-called composite need) or those in Category (e) who are entitled to the additional preference. Parliament has left it to the Authority to decide how to assess the various categories and what weight should be attached to each. In fact, what the Authority must do is to assess the needs of each applicant and endeavour to give preference to those in greater need. This is what Lambeth says its scheme is designed to do and it asserts that it succeeds in so doing. In reality, a judgment has to be formed by someone when faced with competing needs and a woefully inadequate availability of suitable accommodation."

Mr Justice Collins said further at paragraph 19:

"Any scheme which is aimed at an assessment of comparative need will be imperfect. Whether done by means of quotas or points with an injection of discretion or howsoever, it will inevitably involve elements of subjective judgment and individuals will feel that their needs are greater than those of others who have been given priority over them."

He rejected a submission at paragraph 25 of his judgment that the scheme has to contain a particular degree of precision, and said that the wording of the Act does not require it:

"The scheme must set out all aspects of the allocation process, but it is not necessary to do more than Lambeth has done, that is to explain what criteria apply to each Group and to indicate that an officer will allocate in accordance with those criteria which maybe general. Equally, although it is unlawful for other reasons, self-assessment is sufficiently explained."

In the event, that scheme failed.

48. Lord Justice Pill, giving a concurring judgment, said at paragraph 37:

"I agree with Collins J (and Sullivan J [below]) that the council's allocation scheme is unlawful by reason of its failure to give preference over the 96 per cent of applicants who are entitled to the statutory preference over the 4 per cent who are not. The 4 per cent cannot for present purposes be dismissed as too small to matter."

He said ar paragraph 40:

"I also agree with Collins J, and the judgments cited that the allocation scheme must provide fuller guidance in identifying needs, including a recognition that the factors in section 167 (2) may operate cumulatively."

49. It is apparent that all judges considering this problem have stressed that it is for the local authority to provide an allocation scheme according to its Part VI duty, and the merits as to who, how and when priority should be afforded is a matter for the local authority subject to its special duties. Judges must be particularly slow in entering the politically sensitive area of allocations policy by over-broad use of the doctrine of irrationality. A particular scheme cannot be castigated as irrational simply because it is not a familiar one to the court or is not considered to be the perfect solution to a difficult, if not impossible, question to resolve.
50. Judgment of legality further is based on assessment of whether the scheme affords reasonable parity rather than the outcome of the scheme in a particular case although outcome may need to be carefully monitored to see if the scheme needs adjusting.
51. In my judgment, however these three cases demonstrate the scheme must address the greatest need by way of a preference scheme that enables a judgment on cumulative need to be taken. If the needy and the non-needy are treated alike or the multiple needy are treated in the same way as a person with only a single and lesser need, the scheme can be castigated as unreasonable and therefore contrary to the statutory duty of the local authority. That follows despite the concluding words of Section 167 (2), as originally enacted -

"the scheme may also be framed so as to give additional preference to particular descriptions of people within this sub-section (being descriptions of people with urgent housing needs)."

52. A similar conclusion was reached by Mr Justice Lloyd-Jones in Cali, previously cited. The following extracts are pertinent to the present problem:

"21 The criticisms which are made by the claimants are essentially criticisms of the approach followed by the defendant, and in particular the alleged failure of that approach to take proper account of composite need where it arises. In this regard, it is important to bear in mind that the assessment of need and the identification priorities cannot be an exact science. It inevitably involves the exercise of judgement and the balancing of a wide range of demands and needs. Thus Collins J observed in R (on the Application of A) v Lambeth LBC [2002] EWCA Civ 1087; [2002] HLR 57:

'Any scheme which is aimed at an assessment of comparative need will be imperfect. Whether by means of quotas or points with an injection of discretion or howsoever, it will inevitably involve elements of subjective judgement and individuals will feel that their needs are greater than those of others who have been given priority over them.'

Nevertheless, the exercise of judgment in individual cases must take place within a framework which conforms with the requirements of the legislation.

.....

31 I accept the submission of the claimants that the defendant's published scheme does not allow for cumulative grounds for the grant of preference to be recognised and reflected in an assessment of housing need. There is no mechanism in the published scheme whereby a household qualifying a number of times over for reasonable preference can, on the basis of its cumulative need, qualify for additional preference. Indeed it was common ground in the course of argument before me that under the published scheme such a household could not qualify for additional preference unless at least one member could cross the threshold for additional preference. Moreover, such a household would then remain in the reasonable preference band where its additional needs would not be given any effect since priority within that band depends entirely upon the date of original registration. The published scheme would permit a household to qualify for reasonable preference on the basis of social need. If one member of the household also suffers from a medical condition which would, of itself, bring the household into the reasonable preference band but was not so exceptional or of such severity as to bring the household into the additional preference band, the additional medical need could not be given any effect. Similarly, if a household has a number of children with medical conditions which, in each case, would require classification within the reasonable preference band but not within the additional preference band, the needs of the others could not be given any effect. The overall effect of this is intensified by the fact that the reasonable preference band is, under the defendant's scheme, a very wide band so that the failure to recognise the additional qualifying needs, is that much more serious. A large number of needs of widely varying severity are banded together and thereafter priority is determined solely on the basis of waiting time.

.....

35 Next, Mr Bhose submitted that the requirements of the legislation were met by the defendant's scheme because it embodies a system of self-assessment. The defendant's scheme, he says, permits each household qualifying for reasonable preference to take a realistic view of its needs and the likelihood of their being met. A bid for a less attractive property is more likely to be successful. As Mr Bourne explains in his witness statement, since all applicants in the reasonable preference

band are entitled to bid for properties, those who consider themselves to be in real need of moving quickly may bid for the less attractive properties that are advertised. This argument echoes a very similar argument advanced by Lambeth LBC in R (on the Application of A) v Lambeth LBC where great emphasis was placed by Lambeth on the opportunity to make a choice to achieve preference. I am not persuaded by this argument. The amendments to the 1996 Act introduced in 2002 were certainly intended to introduce a measure of choice into the allocation of social housing. However, those amendments left intact the principle of the identification of comparative need, as is apparent from the statutory scheme and the revised Code of Guidance. Whatever may be the virtues of self-assessment, it is no substitute for the principle of the identification of comparative need and does not absolve authorities from their duty to establish schemes which take account of comparative need.

.....

40 Secondly, s.167 (1) requires that the scheme shall include the procedure to be followed in allocating housing accommodation and state that this includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken. This approach is also reflected in the Code of Guidance at para 5.1. Mr Bourne in his witness statement and Mr Bhose in his oral submissions very frankly accepted that the scheme could be clearer in explaining how the Panels operate in cases of composite need. Mr Bhose suggested that the statutory requirement was satisfied by the following statement in the scheme:

'Registration of all cases will be subject to assessment by the Council. This will normally require applicants to provide various documents to support their applications and to confirm their current circumstances.'

To my mind this passage does not begin to meet the statutory requirement. It appears in a section relating to eligibility to apply and contains no explanation as to how need is to be assessed. I am satisfied that the published scheme does not set out the criteria for the award of additional preference when an applicant comes within one or more of the reasonable preference categories.

.....

46 In his oral submissions Mr Bhose contended that the threshold for the reasonable preference band may easily be determined by a simple process of elimination. In his submission, the criteria for the additional preference band are clearly identified by the scheme. Moreover, the no preference band is defined in the scheme as including those applicants who are 'adequately housed or where the Council does not have a duty to provide them with secure accommodation'. On this basis, he maintains, it is possible to identify the criteria for the intermediate band of reasonable preference. However to my mind this does not meet the requirements of the legislation. It does not explain what criteria apply or indicate that they will be applied. Accordingly, I have come to the conclusion that, for this further reason, the defendant's scheme fails to comply with the requirements of s.167 (2)."

It is clear from these extracts that his Lordship again concluded that a cumulative assessment was needed. This decision is significant because the allocation scheme based upon choice of lettings and additional preference had a similar structure to the scheme which is under review before me although I am unable to determine whether it is precisely the same.

53. Mr Baker has pointed out and observes that there is no reference to Section 167 (2A), but this is not a case concerning the questions raised in that sub-section. It can hardly have been forgotten about by counsel or the judge, having regard to the date of the decision. I have carefully considered Mr Baker's submissions that I am not obliged to follow these cases and should not do so. But I have concluded that there is nothing in Section 167 (2A) that throws doubt on the reasoning regarding cumulative assessment of need, and further that there is nothing in the subsequent Court of Appeal decision in R (on Application of Lin) v London Borough of Barnet [2007] EWCA Civ 132, [2007] HLR 30, to which I shall turn, that undermines the previous learning on this question.
54. As regards Section 167 (2A), it seems to me that if Parliament concluded that the composite cumulative assessment approach, decided in the first two cases I cited, was wrong, it could have amended the law in 2002 to say so, but it did not. The fact that Parliament has enacted that the specific considerations can be taken into account in Section 167 (2A) does not, in my judgment, undermine the proposition that cumulative assessment of need is still required in Section 167 (2) before amendment and survives after amendment. That cumulative assessment of need appears to me to be the heart of the statutory policy as determined by the courts and should play an important factor in the formation of particular allocation policies designed to give effect to statutory duty, as the revised Code of Guidance continues to urge. It could be said the fact that Parliament considered it necessary to make specific statutory provisions for derogations or deviations from pure need in the sections added in 2002 somehow underline the importance of the primary assumption "that need is cumulative and the greatest priority is given to the greatest need" and there is certainly nothing that leads to the conclusion that it was striking out in a new direction altogether.
55. Of course Section 167 (2A), the judgment in Lin and the earlier judgments all point out that the primary judgment for allocation policy is with the local authority, and can only be reviewed for compliance with statutory duty. Nevertheless the cumulative policy is part of that statutory duty.
56. Mr Baker relies on the case of Lin. I have carefully read that case at paragraphs 25, 28, 35 and 36, to which I was referred. That was not a case concerned with cumulative claims or multiple claims. It was a case where the scheme was bad because some non-priority claimants were awarded points. It is apparent from Lin that some regard can be had to non-167 claims as long as these claims do not distort the need to give genuine priority to claimants who have reasonable preference or are exceptional. The Court of Appeal recognised that time on the waiting list could be a relevant factor, but so had Mr Justice Richards. And Mr Latham never contended it was an irrelevant factor. His submission was that time cannot become the predominant priority under the allocation scheme over those with needs within the meaning of the statute, and multiple needs. The use of a waiting time as a tie breaker between those whose needs are broadly equivalent is not objected to at all.
57. I therefore conclude that in deciding the challenge to the policy I should follow the guidance in all the cases, Reilly and Mannix, Cali as well as the guidance in the two Court of Appeal decisions. Far from being satisfied that the decision in Cali is plainly wrong so it should not be followed by a court, I agree with its reasoning and adopt it as my own in the present case. It now falls to apply those principles to the particular policy under challenge in this application.

Conclusions

58. Of the three submissions made by Mr Latham, it seems to me that his second submission dealing with cumulative need has force when applied to the defendant's policy and I prefer this submissions to the rival submissions of Mr Baker for the following two reasons.
59. First, under the defendant's scheme the same priority is afforded to priority housing claimants under the scheme as to tenancy transfer claimants under the scheme although the former are entitled to reasonable priority under Section 167 (2) and the latter are not, or at least not necessarily. Transfer cases may be limited to five per cent of the annual allocation under the defendant's policy, but it is to be noted that in the Court of Appeal case - A and Lindsay - giving priority to a similar percentage of non-priority cases was held to distort the policy. This distinguishes the observations in Lin where non-statutory entitled persons were entitled to be given some points so long as it was not distorted. The recent bulletin with which I have been provided demonstrates that transfer applicants can bid for the same housing that the claimant can bid for, and it appears that they are given the same status under bids when the claimant should have been given priority because of his Section 167 (2) assessments.
60. Secondly, cases of multiple claims to priority on the basis of both overcrowding and medical or social need or overcrowding and medical or social need of more than one person in the household must be capable of being considered a greater case of need than a single factor by a single person. As I read present policy, this is not generally permitted. True it is that the defendant does have a multiple needs policy which enables persons with multiple claims for reasonable preference to be considered for direct offers under a form of additional preference.
61. The details of the scheme are set out in a form which is provided at the conclusion of paragraph 2.4.3 of the policy, and the material parts enable a scoring of points:

"1) Unsatisfactory Accommodation:

Is the household's current accommodation statutorily overcrowded or subject to Environmental Health abatement action?

2) Housing Related Health/Welfare

Does more than one member of the household have reasonable preference to move on medical grounds? If yes score one for each additional member of the household."

Those are the two limbs which might apply in the present case. The policy continues:

"Assessment

Total score from assessment questions 1, 2 and 3 and check question 2.

1 = no Additional Preference.

2/3 = A[dditional] P[reference] will be made one direct offer of a suitable property ..... "

62. Turning to my reasons for accepting the challenge on this scheme, the defendant's multiple needs policy does not cure the defects in the reasonable preference policy which, by itself, makes no distinction between those with more than one claim or more than one person having more than one claim. This conclusion is supported by three features of this part of the scheme.
63. First, in my judgment, most significantly, because you have to have three medical or social needs to achieve success under the multiple needs policy to get your two points on that basis to be eligible for additional preference, Shaira would have one point. In order to have multiple needs, both Amaan and the claimant would need to have medical needs. If it turned out that it was simply Amaan who had such needs, that may be a multiple case of medical needs which would not achieve priority under the scheme.
64. Secondly, it appears from the first box relating to unsatisfactory accommodation that accommodation is only considered unsatisfactory if it is statutorily overcrowded or subject to abatement action. But, in my judgment, Section 167 (2) (c) need must include those who live in unsatisfactory housing conditions but need not necessarily statutorily be overcrowded. A very real basis of legitimate need recognised by the statute may turn out not to be catered for. Indeed the defendant recognises that overcrowding does exist in the decision letter in this case. But I am uncertain whether it recognises that overcrowding as a sufficient basis for multiple needs for overcrowding. If they recognise overcrowding as a basis for multiple needs for additional preference under their policy, if they did, then of course just Amaan's ill health, plus overcrowding, plus Shaira's needs might lead to a sufficient number of points to achieve additional preference. That has not been offered to date.
65. Thirdly, the policy is not cured by other provisions of the additional preference policy. In particular paragraph 11.2 of that policy demonstrates that a most rigorous test of medical assessment is needed to come within emergency re-housing on this ground alone, and that would exclude other cases of genuine medical or welfare need that may not lead to re-housing emergency.
66. I therefore conclude that when the claimant's case has to be reconsidered the existing form for multiple needs will need some adjustments in the light of the observations in this judgment, dependent, of course, on the outcome of the factual assessment of the case. To that extent, I consider the present policy is deficient and not meeting the standards required by law, however difficult it is for the defendant council to formulate this decision and without being over-rigid with the application of what is a judgment of need.
67. I am much less impressed with Mr Latham's other two submissions on the legality of the policy as a whole.
68. Dealing with his third submission, it seems to me, in the light of the statute, the Code and the previous learning, that no precise criteria of medical or social need needs to be fully spelt out in the policy. These matters can be addressed carefully and thoroughly by the relevant officers performing the function under the policy and giving a sufficiently reasoned decision in the end. By these means the claimants will know why they failed to be afforded the priority under the schemes that reflect the duty in the statute. Thorough and complete as the policies for assessments have to be, the duty does not, in my judgment, require every single factor relied upon to be spelt out in advance. This remains a field of judgment rather than science, and a realistic, cumulative assessment could be undermined by over-prescription of circumstances in the policy. Clearly the claimant must know who is to make the judgment and how. That is likely to be apparent from the forms used to make the assessment and the information the claimant puts into the process by following them.
69. The actual judgment as to whether the case is made out and the conclusion should be plain from the reasons in the decision to follow. For the same reasons one cannot and should not be too prescriptive as to the reasoning process. Where there is a challenge each case should have to be considered on its merits.
70. As to Mr Latham's first ground of challenge that choice should be given to all and the most needy should not be restricted to no-choice direct offers - I am not satisfied that this is an independent ground for striking down the defendant's scheme as incompatible with the statute. Here, I prefer Mr Baker's submissions that Section 167 (1A) of the statute (quoted earlier in this judgment) does not mandate a choice-based lettings scheme at all or in every case, although this is the undoubted direction of government policy. The statute requires the local authority scheme to include a statement of policy with respect to housing allocation as to (a) choice or (b) the opportunity to express a preference rather than to adopt a policy confined to one or the other. It may be that if there was no provision at all for the policy of choice of dwellings, the rationality of such a scheme would not survive scrutiny having regard to the statutory purpose envisaged. But that is not this case.
71. Mr Latham's submission is that if you are to have a CBL for some, you should have it for all. All parties should be assessed in the same way through choice. That is absolutely a matter of the merits of the scheme for local authorities to decide upon rather than for the court to impose by deduction from factors that arise in this case. It may well be rational for a local authority to conclude that the benefit of direct offers in the hand outweigh the opportunity to bid for the home which you may very well not succeed in obtaining, as the claimant's recent history shows. Nevertheless the local authority may well want to re-evaluate the matter, in the light of the previous remarks in this judgment, as to the need for greater ability to take into account cumulative assessment, whether that should be done by amendment of the multiple needs DO approach or making some ability to rank reasonable preference needs in the CBL scheme is a matter for the authority to consider itself.

Relief

72. I have therefore concluded that I will set aside the individual decisions and quash them. If the undertakings to consider in 28 days are still on offer, bearing in mind there may be applications, I will accept them. I will give liberty to apply in the event that the undertakings are not met and the matter remains outstanding for 28 days or it is said that no sufficient reasons are given. I am minded only to grant a declaration that the cases shall be reconsidered according to law and according to this judgment. I am not proposing to grant any relief quashing the policy as a whole since I have found it defeective only in the parts identified in this judgment since they may have to be reconsidered on a fact-sensitive basis rather than eliminated as a whole from the case. I will hear counsel on the question of relief necessary.
73. For those reasons I allow this application for judicial review to the extent I have indicated.
74. MR LATHAM: On the question of relief, at the micro level I await to hear Mr Baker's proposals. At the macro level, my Lord has found that the scheme is unlawful in so far as the reasonable preference group does not permit a lawful assessment. In my submission some declaration should be made in respect of that. I would accept that the declaration could be in general terms given the substance - in my Lord's view - as set out in the judgment itself.
75. THE DEPUTY HIGH COURT JUDGE: The trouble is that it seems so much is going to be fact-sensitive as to whether individuals have - - indeed, it may be, on one view, if the re-assessment is done and the family are considered to be overcrowded and having at least two sick people that gets you substantially where you are going. I would find it difficult to formulate a declaration that was sufficiently precise without being too overwrought. It seems to me that the judgment as a whole reads as to indicating what is the problem with the particular scheme. If the declaration is that the re-assessment is made according to the judgment, then the modification of the scheme will follow. It is not as if one is to having to quash a statutory instrument or order or something of that sort. It is going to have to be for the local authority to amend and adopt as necessary.
76. MR LATHAM: I certainly do not seek an order quashing the scheme because the consequences of that - - - - -
77. THE DEPUTY HIGH COURT JUDGE: - - - - - are rather large.
78. MR LATHAM: It may be that Mr Baker also needs some guidance for Newham. Clearly action is required by Newham in respect of the scheme. Merely to re-assess in the terms in the existing wording of the scheme would not lead to a lawful decision in the light of my Lord's judgment.
79. THE DEPUTY HIGH COURT JUDGE: Have you any proposals? I looked at your claim form, and I was not prepared to go that far.
80. MR LATHAM: Inevitably it is difficult to draft a detailed declaration after an extempore judgment when one has not had time to consider it. The formulation I was suggesting was a declaration that the multiple needs group under the scheme does not permit a lawful cumulative assessment of need.
81. THE DEPUTY HIGH COURT JUDGE: Mr Baker, what do you say on the question of this aspect of relief? I think probably I can give an indication of where my mind is going. Would you prefer to have a declaration so you could at least appeal against it if you wanted, or does it make it clearer to the authority what needs to be done, or does the judgment indicate what the perceived problem is?
82. MR BAKER: For my part, I understood clearly what the perceived problem was and did not consider that the absence of a declaration in that regard would prevent an appeal if one were to be launched. If I am wrong about that, I would almost be inviting the court to make a declaration. But these days the approach is generally taken that the appeal is against the substance of the judgment rather than the order.
83. THE DEPUTY HIGH COURT JUDGE: It was the order.
84. MR BAKER: That rather tended to be the approach, certainly previously. For example, in the Lin case it was the claimant who appeared, notwithstanding having been successful in part, trying to get more relief.
85. THE DEPUTY HIGH COURT JUDGE: Yes. He was appealing against the relief.
86. MR BAKER: Precisely. He wanted to get more relief, so he was appealing against the relief. He was - - - - -
87. MR LATHAM: Can I suggest this formulation which is slightly different from what you indicated in your judgment: if you could conclude that one aspect of the scheme does not comply with the statutory framework but my Lord feels that no specific declaration is required as that aspect is sufficiently identified in the judgment.
88. THE DEPUTY HIGH COURT JUDGE: That is what I intended to say and this will be reflected in the edited judgment.
89. MR LATHAM: My sole concern is that it should be apparent from the order that my Lord's concerns are not simply restricted to the assessment but do extend to the current structure of the scheme.
90. THE DEPUTY HIGH COURT JUDGE: What I was proposing was that the declaration of the case shall be reconsidered according to law as set out in this judgment. If you want, I may be - - a declaration that these cases shall be reconsidered according to the requirements of a lawful scheme for multiple needs as set out in this judgment.
91. MR BAKER: I am happy with that.
92. THE DEPUTY HIGH COURT JUDGE: If I do that, that gives greater clarity.
93. MR LATHAM: One has the undertaking, and I am not quite sure - - - - -
94. THE DEPUTY HIGH COURT JUDGE: It occurred to me, although I am perfectly prepared to accept your undertaking but that might may create more problems.
95. MR BAKER: There is a difficulty which is that since the allocation must proceed in accordance with the scheme, and you have found the scheme is deficient, the authorities will have to reconsider the scheme, at least to put in some sort of interim strategy before they can be taking lawful decisions. Before a reconsideration of this particular case could take place, the authorities have to consider what they do about the scheme. If there is to be any change of the scheme reflecting a major change of policy - those are the words in the legislation - there is a requirement for consultation. Change such as the one you have indicated necessary could be considered to be a major change of policy under this scheme. That would also have to be considered. Having said that, the formula which you indicated, namely the need to apply, could meet that circumstance a result of further consideration by the authority. If there is perceived a difficulty in terms of the timetable, they can come back to court.
96. THE DEPUTY HIGH COURT JUDGE: Being conscious of how long it takes sometimes to start again for anyone feeling they are not being dealt with properly, I thought that was appropriate.
97. MR BAKER: It may be that - - - - -
98. THE DEPUTY HIGH COURT JUDGE: Much depends on what conclusions your team reach at the end of their re-examination of particularly Amaan's case. That might drive it one way or the another without too much need for amendment. I have said what I have to say about that. Shall I say, set aside the decisions of 30 June and that on your undertaking to reconsider the said assessments in the light of any policy that you adopt, with best endeavours, within 28 days, with liberty to apply?
99. MR BAKER: Yes. That would be helpful.
100. THE DEPUTY HIGH COURT JUDGE: To reconsider the assessments, using best endeavours to reach a decision within 28 days from today and to give reasons but with liberty to apply. I am sure Mr Latham would not be pressing you for a decision.
101. MR LATHAM: On the substance, I have no problems. On the practicalities, would it be reserved to my Lord or would it be liberty to apply to any judge?
102. THE DEPUTY HIGH COURT JUDGE: It cannot be reserved to me. I am sitting as a deputy.
103. MR LATHAM: The other matter I would raise - and perhaps it is a matter for the parties to discuss - it may well be that within the order there should be built in the provision for parties to agree extension of the timescale. We would be reluctant to use the authority of this court but there are difficulties.
104. THE DEPUTY HIGH COURT JUDGE: That is why I restricted it to "best endeavours". If you are satisfied that those endeavours are the best ones in the circumstances then no one is going to complain if it takes more than 28 days. You will have to decide what the particular factual problems are on the ground before anyone can move this court for further directions. I think that should have sufficient flexibility to prevent that problem rather than to say apply. If you need to vary the order by saying six months, that is one of the things for which you can apply - - so liberty to apply.
105. MR LATHAM: The formulation I was going to suggest was an undertaking to re-determine the application according to law within 28 days or such further period as the parties may agree in writing, and then add provision for liberty to apply. The advantage of that is that if there is any extension of timescale it is specifically agreed between the parties whereas a "best endeavours" undertaking can lead to uncertainty where, in the initial weeks after the 28 days, it is clear that the authority is using its best endeavours but as the weeks drag on the grey area where there is undue delay may create uncertainty.
106. MR BAKER: We would certainly be content with your Lordship's formulation. Our intention for making it 28 days was to indicate, on what we have been doing (?) - - we have made a noose for own necks by trying to put some sort of time indication on it. It is extraordinarily difficult in circumstances where policy considerations also come into play to put a precise timescale on it. Nor would we necessarily expect that the claimant would be in a position to decide what that time should be. It is inevitable. As my friend says, it is something of a grey area as to how long this should take.
107. THE DEPUTY HIGH COURT JUDGE: I will have to clarify all three elements. I think the first order I make is an order quashing the medical and welfare assessments made in respect of the claimant Omar Ahmad made on 30 June 2006. The second declaration: the cases shall be reconsidered according to law and in particular the requirements of a multiple needs policy that accords with the law set out in this judgment. Third, on the defendant's undertaking to reconsider the applications and give reasons for a decision within 28 days from today or, using best endeavours, to reach such a decision within 28 days of today. Liberty to apply for the purpose of enforcing undertaking or extending or otherwise varying the period. I hope that should be sufficient to enable the matter to proceed with expedition but not undue expedition.
108. MR LATHAM: On permission to appeal, I would ask for permission to appeal on wider grounds. You may wish to hear Mr Baker's response. My Lord may take the view it is all a matter for the Court of Appeal or, if there is to be permission to appeal, it should be granted to both parties.
109. MR BAKER: We perhaps should deal with the remainder of the order first - costs.
110. MR LATHAM: I would ask for my costs.
111. MR BAKER: I cannot oppose that in the circumstances subject to detailed assessment.
112. THE DEPUTY HIGH COURT JUDGE: The defendant to pay the claimant's costs, detailed assessment of your costs.
113. MR BAKER: Detailed assessment.
114. THE DEPUTY HIGH COURT JUDGE: Detailed assessment.
115. MR BAKER: We would seek your Lordship's permission to appeal in this case. We do so for the following reasons: one is that in so far as there is a policy, there are many hundred allocations each year. The implications of your judgment are considerable. There is an important matter there. We would ask for permission to appeal. We would say - notwithstanding your decision - there are prospects of success. Your judgment has proceeded initially on an interpretation of the statutory provisions as they currently are, consideration of which has not featured in any previous judgments. The effect of sub-section (2A) of Section 167, as it now is, is a matter we would say merits further consideration. It throws into real doubt the standing of the earlier case law in terms of the manner in which a local authority's discretion must be exercised.
116. This touches upon the much broader question, the extent to which it is the function of the courts to decide the principles on which the allocation scheme should proceed. Because it is entirely one thing to say that sub-section (2) requires reasonable preference to be given to those categories of person; it is quite another to say that in doing so it is a necessary and essential requirement that the authority address that preference in a cumulative fashion. That is a requirement which has been distilled entirely from the case law. It was distilled in circumstances which we see. Initially under Section 167 there was nothing in the legislation which indicated how the discretion in Section 167 was to be exercised. And it is being continued now in a statutory regime from 2003 where there is specific provision - which we would respectfully say leaves it open - to decide as to how to give preference as between and within the categories of Section 167 (2). So we would say that this is a critical area as to the extent to which the court will impose, under the guise of rationality, requirements on authorities to the necessary content of the allocation policy. That is very much open to doubt and ought to be considered by the Court of Appeal.
117. THE DEPUTY HIGH COURT JUDGE: I think in this case the issues are of considerable public importance. I see that there may be public benefit in the Court of Appeal looking at the totality of the issues on which you have both lost and won and seeing how the authorities are consistent with each other or the statutory scheme or not, as the case may be. Upon reflection, I am persuaded that this is a case in which I would give the defendant permission to appeal and the claimant permission to appeal on issues on which they have not succeeded. And may be we can get some clearer guidance than I am able to offer.
118. MR BAKER: We come to the difficulty of how, in the absence of an entirely lawful policy, do we make a decision in this case or indeed in any other? For that reason, I would invite your Lordship, having decided to grant permission to appeal on both sides, to stay the effect of the orders you have made in order to hold the ring while we sort this out.
119. THE DEPUTY HIGH COURT JUDGE: Can we proceed?
120. MR BAKER: The bigger the challenge, the more difficult it is to determine the particular case.
121. MR LATHAM: I would strongly oppose a stay. It would be entirely unsatisfactory for my client to be left in his current position where he has no option of obtaining a successful outcome, given a clear finding that the policy is not a lawful assessment. Equally I fully understand the difficulties faced by Newham. The challenge they face is not simply adopting a new scheme, which will require consultation, but some interim measures in the short term. Strictly any allocation made hereafter would be ultra vires because it would not be in accordance with the statute. No applicant has ever taken these challenges to the logical conclusion. In my submission the formulation we have agreed, which is that the defendant should use its best endeavours, gives sufficient flexibility to the court, and they can consider what Newham is doing on any application.
122. THE DEPUTY HIGH COURT JUDGE: Is there a possibility of Newham proceeding to re-determine your client's priorities on an interim basis while reserving their rights in the Court of Appeal or elsewhere? Is that possible?
123. MR BAKER: Indeed.
124. THE DEPUTY HIGH COURT JUDGE: I am uncertain whether you cannot make any determinations at all.
125. MR LATHAM: If they cannot make any determination they cannot make any allocation. It would be nonsense for Newham to leave their housing stock empty. The issue was raised in the Lambeth litigation, where, months after judgment was given, there was still no lawful determination of those two applications and it did cause considerable concern to the Court of Appeal. In my submission an undertaking lawfully to determine the applications, using their best endeavours to do so within 28 days, does give sufficient flexibility. Rather than grant a stay if my Lord were to re-word the undertaking to use their best endeavours to determine the applications without undue delay is a formulation I prefer.
126. THE DEPUTY HIGH COURT JUDGE: I have tried to finalise the issue. I rather think this court is not best placed at the moment to decide what the practical implications are going to be. I am therefore going to leave matters as they stand. I am not going to direct a stay. But it may be that on reflection by both parties, if they realise that is very difficult, in which case you ought to agree between yourselves what the position should be pending appeal, and if it transpires this does block the working of Newham's housing schemes, it is necessary to go to the Court of Appeal and you will need evidence there as to what is going on. I think I am not going to grant a stay although I recognise there may be circumstances in which it has to be granted. It may be there are things that can be done to progress this particular case. I am concerned about the children getting older day by day and the housing needs that affect the schooling getting worse.
127. I shall have to leave it there. This is going to require further sensible discussions between the two of you and exchange of information as to what can be done, what should be done, and if the end result is a joint application to the Court of Appeal that is probably more effective than anything this court can do.
128. MR BAKER: We will effect constructive engagement with the claimant's side.
129. THE DEPUTY HIGH COURT JUDGE: Thank you. I am sorry this judgment is so long.
130. MR BAKER: We are obliged for the court's speed and flexibility shown last week as to how we conducted matters.
131. THE DEPUTY HIGH COURT JUDGE: Thank you. It is quite a difficult judgment to deliver extempore.
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