England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 November 2009

Judge Anthony Thornton QC:

Introduction

1. The claimant, Ms Zoja Kabashi, is a tenant of the defendant, the London Borough of Redbridge ("Redbridge") having been provided with temporary accommodation in November 2003 by Redbridge in accordance with its duty under section 193 of the Housing Act 1996. Ms Kabashi also applied for permanent accommodation through Redbridge's Housing Allocation Scheme with an initial effective date of 11 September 2003. This effective date was changed to 1 August 2007 when her requirement for a three-bedroom property changed to a requirement for a two-bedroom property. She still remains in temporary accommodation and on Redbridge's waiting list for permanent accommodation. She complains that the provisions of Redbridge's Housing Allocation Scheme, which required her effective date to be brought forward to 1 August 2007 when her accommodation requirements changed, amount to an irrational application of its statutory duty in relation to housing allocation policy and an unlawful fettering of its discretion in relation to the application of that policy. Ms Kabashi therefore claims a mandatory order or a declaration that Redbridge should change her effective date back to, and should hereafter take it to be, 11 September 2003.
2. Ms Kabashi is an ethnic Albanian who is originally from Kosovo. She was granted indefinite leave to remain in the United Kingdom on 12 November 2003. Ms Kabashi's family at that time consisted of herself, her brother and her two sons, now aged 8 and 10. Ms Kabashi and family were, following her being granted indefinite leave to remain, accepted by Redbridge as being homeless but not intentionally homeless and as also being eligible for assistance and in priority need. In those circumstances, Redbridge complied with its statutory duty by providing Ms Kabashi, her brother and two sons with secure and suitable temporary accommodation on 24 November 2003 at 2 Stanley Road, Ilford. Ms Kabashi also applied to register on Redbridge's Housing Register in order to obtain a permanent residence. Her effective date was provided as 11 September 2003, her sole reasonable preference category was as a homeless person owed certain Housing Authority duties by Redbridge and her assessed suitable accommodation needs were for a three-bedroom property.
3. Ms Kabashi's brother moved out in July 2007 in order to get married and it was that move that led to Redbridge altering her property requirement from a three-bedroom to a two-bedroom property. Following this alteration, Redbridge changed her effective date to 1 August 2007 in accordance with its Home Allocation Policy. In April 2008, Redbridge moved Ms Kabashi and her two sons to 149 Kingston Road, Ilford because of problems of disrepair, infestation and local anti-social behaviour that were making life impossible at their previous address. Ms Kabashi and her sons still remain in temporary accommodation and it is unlikely that they will be able to bid successfully for a permanent home for some time to come. Her complaint is that when her property requirement changed as a result of her brother moving out, she should have been entitled to be placed on the two-bedroom list with the same effective date as she had on the three-bedroom list. However, the policy of Redbridge, as clearly stated in its policy document, is that when a change in a family's composition necessitates a changed requirement for the size of accommodation, the effective date will then change to the date when that new need arose. Ms Kabashi is somewhat aggrieved by the application of this policy to her and her sons since it will have set back her obtaining permanent accommodation, possibly by as much as four years.

Redbridge's Housing Allocation Scheme

4. The allocation of social housing by a local authority is a difficult and potentially controversial matter because such housing is in increasingly scarce supply and demand continues to outstrip supply to a greater and greater extent, even if the demand is limited to those whose needs are very pressing. Local authorities must, therefore, adopt methods of allocating the limited number of newly available social housing units which identifies competing priorities as fairly as possible yet enables the authority to fulfil its various statutory duties to provide accommodation for different vulnerable groups and leaves it with as much discretion as is possible in the manner in which it undertakes its allocations.
5. The legislature has, since 1935, intervened to the extent of laying down some principles which a local authority must comply with. The current statutory principles are set out in Part 6 of the Housing Act 1996 as subsequently amended by the Homelessness Act 2002 and the Housing Act 2004. This legislation requires each local authority to devise an allocation scheme for determining priorities which shall be framed so as to secure that reasonable preference is given to various categories of the most vulnerable. The legislation also provides that each scheme should have regard to such statutory guidance as is issued by the Secretary of State. The relevant guidance is currently set out in a Code of Guidance dated November 2002. Redbridge produced a detailed Policy and Guide to its Housing Allocation Scheme which is the subject of Ms Kabashi's claim and which it contends complies with its statutory obligations and with the Code of Guidance. Redbridge also contends that the provisions within the Scheme that Ms Kabashi complains about comply with the Code of Guidance and are both rational and not subject to judicial challenge or review.
6. The essence of a suitable Housing Allocation Scheme is that it must identify mechanisms for identifying applicants in the greatest need by reference to reasonable preference categories and it must also make provision for determining allocation priorities between households with similar levels of need. The Code of Guidance recognises that it is legitimate to employ some indicator that reflects the time spent waiting at a particular level of need as a means of determining priorities between households with similar levels of need. Redbridge's Scheme was prepared in accordance with this guidance. It first investigates an applicant's circumstances and assesses their needs to decide whether or not the applicant has any reasonable preference under the scheme in accordance with the various categories set out in section 167(2) of the Housing Act 1996. Those who are assessed as having more than one reasonable preference may be assessed as having greater priority to those with only one reasonable preference. Redbridge also assesses whether any applicant with a reasonable preference should be awarded additional preference as one with an urgent housing need.
7. Ms Kabashi qualified under one reasonable preference category, being a homeless person owed duties by Redbridge as a Housing Authority. She attempted to qualify under two other reasonable preference categories related to the insanitary and overcrowded housing her family were initially occupying and to her medical problems but she now accepts qualifying under the single category related to homelessness and Redbridge's Housing Authority duties. She does not have an additional preference.
8. The relevant provisions of the Scheme are as follows:

(1) Redbridge allocates accommodation using a 'choice based' lettings system. Properties are advertised on a fortnightly basis. As a registered applicant, Ms Kabashi may bid for up to two two-bedroom properties (prior to 1 August 2007, three-bedroom properties) in each fortnightly list. When the bidding closes, Redbridge sorts the bids for each property by the applicants' effective dates.

(2) Additional preference applicants are ranked in effective date order and have first priority. If there are no additional preference applicants, the reasonable preference applicants are ranked in effective date order with the applicant having the greatest number of reasonable preferences at the top of the list and those with one reasonable preference ranked in effective date order behind those with more than one reasonable preference.

(3) Redbridge therefore gives effect to the obligation to make provision for determining allocation priorities between households with similar levels of need by using the effective date system whereby such households, in Ms Kabashi's case being the large number of households having one reasonable preference, are ranked in effective date order.

(4) This Scheme is operated separately for each property type and an applicant on the list may only bid for properties of the type for which they have been assessed. When an assessed housing need changes, the Scheme provides:

"For new applicants [such as Ms Kabashi] their registration date is when we receive their application. However, should an applicant's assessed housing need change necessitating the provision of a particular type of accommodation or property with more or less bedrooms than originally needed, the effective date will be when the new need arose."

It is only this particular, but critical aspect of the Scheme that is challenged by Ms Kabashi.

9. Redbridge introduced this scheme in July 2003. It has the lowest housing stock in London outside the Corporation of London, currently with less than 5,000 properties and approximately 2,000 leasehold properties. The whole of its stock is allocated through this system. Between July 2003 and March 2008, 229 three-bedroom properties and 601 two-bedroom properties became available and in March 2008 there were 1,959 registered applicants for three-bedroom properties and 3,681 for two-bedroom properties of whom 2,128 have one reasonable preference. It is very difficult to establish the waiting time that an applicant will have to wait until a bid is successful. This is for a number of reasons. Firstly, waiting times are lengthy because demand so greatly exceeds supply. Secondly, applicants are under no compulsion to bid and for any particular offered property there will be many applicants, even with an early effective date, who do not bid. Thirdly, it is not possible to predict with any degree of accuracy how many applicants will bid for any particular property and, amongst those who do, what their levels of priority are in terms of reasonable preference and effective dates. All that can be said is that it is reasonably predictable that Ms Kabashi's overall waiting time for permanent accommodation may have been set back, possibly by an appreciable period of time, following her being given a new effective date for a two-bedroom property compared with the waiting time she might ultimately have experienced had her original effective date for a three-bedroom property remained unchanged. However, the possible set back and its possible length are not capable of being assessed or quantified.
10. Redbridge's evidence also provided an explanation for the part of the Scheme about which Ms Kabashi complains. The Scheme was devised taking full account of the Code of Guidance^[1] and the terms of the Green^[2] and White^[3] Papers that preceded the introduction of the relevant statutory provisions which, although they appear in the Housing Act 1996 were introduced as an amendment to that Act by the Homelessness Act 2002. These documents provide support for the Scheme providing for an alteration of the effective date of an applicant where assessed housing need changes, whether to larger or smaller sized properties, so that the new effective date becomes the date on which the changed need occurred. Redbridge took note of, and adopted, the advice that a points-based system was both unfair and ineffective and instead adopted a system based on waiting times. The system was devised so as to be transparent, easy to operate and fair whilst complying with Redbridge's relevant statutory obligations and the ministerial guidance provided in the Green paper and the Code of Guidance. The particular provision complained of was introduced because it was regarded as unfair to allow those who changed categories to take their place in the waiting list of the changed category at a point in the list which corresponded with their place in their previous category. Those whose place in a list was adversely affected by such a move would perceive any such interloping of applicants into their list as amounting to both queue jumping and as taking an unfair advantage of others in that waiting list. Moreover, experience had shown that a provision allowing the transposing of an effective date from one list to another encouraged queue jumping.

Relevant law

11. The reviewability of Local Authority Housing Allocation Schemes introduced under the Housing Act 1996 (as amended by the Homelessness Act 2002) has recently been authoritatively addressed and determined by the House of Lords in R (Ahmed) v London Borough of Newham [2009] UKHL 14. In that case, the suggested unlawfulness and irrationality of a Housing Allocation Scheme similar in its content to Redbridge's Scheme was considered on two separate bases. The first suggested basis for suggesting the Scheme was unlawful was that the Scheme placed all those who qualified for reasonable preference under section 167(2) in a single group and their relative priority in bidding for available accommodation was determined not by relative need but by the length of time that they had been registered on the housing list. The courts below had held that these fundamental aspects of Newham's Scheme were unlawful and irrational because they provided an insufficient mechanism for identifying those in need and giving them priority. The second suggested basis for suggesting the Scheme was unlawful is not directly relevant to Redbridge's Scheme. The Scheme under consideration involved allocating a significant, albeit small, proportion of housing to a class of applicants who did not satisfy any of the requirements in paragraphs (a) to (e) of section 167(2). The Courts below held that that aspect of the Scheme was also unlawful and irrational since these non-conforming applicants were being given a priority in preference to those who the Scheme was required to prioritise. The House of Lords allowed the appeal on both counts having concluded that the Scheme was both lawful and rational in all respects. The decision is particularly relevant since it identifies the limited and only basis on which a successful judicial review of a Housing Allocation Scheme and its application to individual applicants can be mounted. The principal speech was delivered by Lord Neuberger of Abbotsbury. A second shorter concurring speech was delivered by Baroness Hale. The other three members of the House of Lords concurred with both speeches.
12. The two speeches need to be considered in detail but it is possible to summarise the principal holdings as follows:

(1) A housing applicant has no right to a house but a local housing authority has a duty to promulgate and give effect to a lawful allocation policy which applies to the selection of tenants for their own housing. That policy must comply with the statutory requirement "to secure that reasonable preference is given to" the statutorily defined groups in section 167(2) of the Housing Act 1996 and with the general public law requirement of rationality. Local housing authorities may give additional preference to some narrowly defined households who are in the greatest need.

(2) Subject to rationality and compliance with any relevant statutory provision, the terms of any allocation scheme are a matter for local housing authorities. In particular, there is no need, and their statutory duty does not require them, to determine priorities as between the people within section 167(2) by reference to the gravity of their needs and they need not identify the extent to which such according of priority is required. Such schemes must give reasonable preference to particular groups of people and not to individual households within them which are in greatest need.

(3) Points-based assessment schemes are not an ideal way of ensuring that housing lettings meet need in a sustainable way. It is preferable for a housing allocation scheme to move to more broad-brush banding systems which may be as simple as "people with an urgent need for social housing; those in non-urgent need of social housing; and those with no particular need for it"^[4]. Experience has shown that a points-based scheme on the grounds that they are too rigid or because the particular distribution of points is for some reason irrational.

(4) There is nothing inherently absurd or arbitrary about prioritising those who satisfy section 167(2) by reference to how long they have been waiting on the waiting list, subject to having a very small preference group. Such a policy that is given effect to be a scheme is not irrational. A scheme may be framed so as to give additional preference to particular descriptions of people within section 167(2). This is permitted, but not mandated, by the closing sentence of section 167(2).

(5) A scheme that distinguishes between applicants in the same band by reference solely to how long they have satisfied that criterion is undoubtedly a rough and ready system but it has many advantages over a more sophisticated system. It is clear, relatively simple to administer and highly transparent. Once an authority has a number of different bands based on degree of need, or the degree to which the section 167(2) factors are satisfied, the scheme is much more based on value judgment, much more open to argument, much more opaque and would be one requiring much more monitoring as applicants' circumstances will inevitably change over time.

(6) It is unrealistic and undesirable for a judge to become involved in the details of housing allocation schemes. If it were otherwise and because of the multifarious factors involved, the large number of applicants and the relatively small number of available properties at any one time, any scheme would be open to attack and it would be a very difficult and time-consuming exercise for a judge to decide whether the scheme before him was acceptable.

(7) It cannot be said that there could never be circumstances in which a scheme, which complies with the statutory requirements, could be susceptible to judicial review on the grounds of irrationality. However, once a scheme complies with the statutory requirements of section 167 and any other statutory requirements, the courts should be very slow to interfere on the ground of alleged irrationality.

13. Redbridge relied heavily on the Ahmed decision and also on the much earlier first instance decision in R v London Borough of Lambeth, ex party Yemlahi [2002] EWHC 1187. In that case the Housing Allocation Scheme in question also provided for different bedroom needs and a change of effective date where the needs of the applicants, a married couple, changed upwards from a one-bedroom to a two-bedroom property when they had their first child. Under the Housing Allocation Scheme operated by the London Borough of Lambeth, that had the effect of changing their effective date originally given to them when their needs were for a one-bedroom property to a later effective date when their needs changed to a two-bedroom property. In other words, the effect of the Scheme was exactly comparable as it has been for Ms Kabashi save that her changed need was for a smaller property. The applicants' contended that this was an irrational provision and sought judicial review. The defendant council contended that the intention of the provision requiring an alteration in the effective date where housing needs changed was to discourage leap-frogging. In refusing to order judicial review, Sullivan J held:

"The mere fact that a different scheme could be adopted, or that an aspect of the allocation scheme might be improved or done differently does not mean that that particular aspect of the scheme is unlawful. It is for the Council to devise the structure of the scheme. A scheme which, inter alia, seeks to prevent leap-frogging is not in principle unreasonable. In my judgment, the Council's approach to this particular aspect of its scheme is within the ambit of discretion conferred by section 167, and by reference to the two examples that I have set out above, it cannot be said that the Council's approach is unreasonable."

It was contended on behalf of Ms Kabashi that this case is distinguishable from hers because the applicant's needs were for accommodation of increased size rather than hers which were for accommodation of reduced size. On behalf of the defendant it was contended that both cases were in principle similar and that the reasoning of Sullivan J applied equally to Ms Kabashi's case. In the light of the Ahmed decision, I do not see how it is any longer possible to contend that the upwards movement in the Yemlahis' requirements were such that their case was to be treated differently from Ms Kabashi's case with the downwards movement in her requirements. The arguments based on irrationality are similar in both cases. Thus, Yemlahi is of considerable relevance notwithstanding the subsequent Ahmed decision.

Parties' Contentions

14. On behalf of Ms Kabashi, it was contended that Redbridge's relevant policy is irrational. Its effect is that, by reducing her requirements from a three-bedroom to a two-bedroom property, Ms Kabashi's prospects for obtaining any accommodation under its Scheme were, in consequence, significantly reduced. Yemlahi is distinguishable because the applicants in that case were seeking a larger property yet they lost nothing since they could have remained in the queue for one-bedroom properties if they chose to do so. In Ms Kabashi's case, she had no option but to down-size her property application and had not choice in being put into the position where she lost her initially granted effective date. A further irrational aspect of the Scheme is that Redbridge is applying its policy of encouraging applicants to make available the relative scarce resource of three-bedroom properties by allowing those already in that size of property to down size voluntarily and, if they do so, they are entitled to be allocated a two-bedroom property very shortly afterwards. If that policy of encouraging families whose circumstances change and they are then suitably accommodated in smaller accommodation were applied consistently, then Ms Kabashi should be able to down size her requirements without penalty in the sense of her effective date being changed in a way that was adverse to her interests. Finally, Redbridge have, or should have a residual discretion to enable it to address anomalous situations such as the one that has arisen in this case.
15. On behalf of Redbridge it was submitted that Ms Kabashi's claim amounted to an attack on the rationality of its Housing Allocation Scheme even though the allegedly irrational element of the Scheme was in the way priority within a specific band was being challenged. This policy was not in fact unreasonable or irrational because it used a time-based method for allocating property to those located in the same banding. In any event, was not one that could be challenged any longer following the decision in Ahmad since the circumstances giving rise to this suggested irrational feature of the Scheme did not present clear and exceptional circumstances of the kind that would allow such a challenge. Redbridge also challenged Ms Kabashi's use of the statistics relating to numbers waiting for different property types.

Discussion

16. It is first to be noted that Redbridge has put forward several reasons why the particular policy that operates to bring forward an effective date when property requirements alter. It is not for the court to assess these reasons since, to do so, it would have to examine all relevant aspects of the Scheme before reaching a conclusion as to whether the overall Scheme was rational or not. This policy also excludes any exercise of a residual discretion to modify the details of the selection scheme. It is clear from Ahmad that it is both rational and fair to exclude any residual discretion from being exercised when allocations are known. The court should not second guess the policy decisions taken by a local authority in settling the details of how it will allocate properties within a particular banding.
17. Moreover, as Lloyd Jones J explained in R (Cali and others) v London Borough of Waltham Forest [2007] HLR 1, it is not appropriate for a Scheme to allow for the exercise of a residual discretion to enable the local housing authority to relax a harsh or apparently unfair aspect of a Scheme. He pointed out that such a discretion would inevitably be too vague and would giver rise to uncertain results to enable it to be operated fairly, speedily and transparently. when rejecting a submission that any rigid rules defining how a Scheme is to allocate housing should be capable of being ameliorated by the exercise of residual discretion by the local authority.
18. The statistics provided by Redbridge do not show in any clear cut way that Ms Kabashi's likely further waiting time has been significantly delayed. Even if that conclusion emerged from the statistics, the Scheme would not be irrational since there are good reasons advanced in its support and, in any event, the court should not embark on a detailed analysis of the Scheme of the kind that would be needed here to identify what if any unfairness results from the present policy of altering effective dates when an applicant up-sizes or down-sizes.
19. The final resting place of the submissions advanced on behalf of Ms Kabashi was by reference to Yemlahi. In the light of Ahmad, however, it is no longer tenable to contend that a scheme that provides for the alteration of effective dates when an applicant up-sizes would be rational but which does not provide for such an alteration is rational. The plain fact is that any perceived imperfections in the Housing Allocation Scheme are not irrational and are not ones that the court can or should investigate in detail.

Conclusion

20. The applicant's claims for judicial review should be dismissed.

Note 1    Code of Guidance for Local Housing Authorities on the Allocation of Accommodation (2002).    [Back]

Note 2    “Quality and Choice: A Decent Home for All” (April 2000).    [Back]

Note 3    December 2000.    [Back]

Note 4    As suggested in paragraph 91.8 of the Green Paper (see footnote 2 above).    [Back]