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
		15 July 2016

MR JUSTICE HOLMAN:

Introduction and the claim

1. The schemes of local housing authorities for allocating their scarce social housing stock seem to be fertile ground for litigation. In the present claim for judicial review against the London Borough of Islington ("Islington"), the claimant contends under three discrete heads of claim that (1) an aspect of Islington's scheme is unlawful in that it prevents applicants to whom reasonable preference must be given, but who have fewer than 120 points, from bidding at all for available properties; (2) additionally or alternatively, that points threshold for bidding is unlawful, being in breach of section 11 of the Children Act 2004 (I will call these two heads of claim collectively the "points threshold claim"); and (3) in relation to herself, Islington in any event misapplied their own policy and failed to award her the 90 "New Generation" points to which she says she is entitled under Islington's own policy and scheme. I will call this the "New Generation claim".
2. As the claimant has currently been awarded 110 points, she may in fact ultimately receive an aggregate of 200 points if she is successful on her New Generation claim. That would mean that she personally would no longer be affected by the unlawfulness alleged under either head of the points threshold claim. However, the claimant was given permission to apply on all three heads of claim and all heads have been fully argued before me. In any event, as will later emerge, even if I quash the decision in relation to her New Generation claim and Islington reconsider it, it is not currently clear whether on the facts that claim will ultimately succeed. So I will accordingly rule on all grounds even although if she does ultimately receive an aggregate of 200 points that will render my decision (either way) on the points threshold academic to her. At the time of giving this judgment it is not academic.

The essential facts

3. The claimant is a young woman now aged 22. She had lived most of her life with her mother in rented accommodation mainly within Islington, although for periods in neighbouring Haringey. In late 2014 she became pregnant. At that time she was living with her mother in the mother's privately rented one-bedroom flat within Islington. She herself had to sleep on a sofa in the living room. A number of factors relating to the state of the property and also to the personality of the claimant's mother (two of whose children had been taken into care) made it an unsuitable and unsafe environment for the expected baby. It is unnecessary for the purpose of this judgment to give any further details, there being no material dispute between Islington and the claimant about those facts. The social services department of Islington informed the mother that if she was not rehoused they would, or may, have to apply for a care or other order to prevent the expected baby living there.
4. The claimant made a homeless application to Islington in June 2015 when she was about six months' pregnant, and at a time when she was still living with her mother as a member of the mother's household in the privately rented accommodation within Islington. On 15 July 2015 the claimant formally applied to join Islington's social housing register. Also on 15 July 2015, Islington provided the claimant with temporary accommodation in a studio flat, and she moved out from her mother and into that flat. Her baby, a girl, was born in mid-September 2015.
5. By a letter dated 6 October 2015 Islington informed the claimant that they had decided that she is: eligible for assistance, homeless, and in priority need, and that her homelessness is not intentional. It is common ground that that decision has the effect that the claimant is within the class of people to whom Islington owe a duty under section 193(2) of the Housing Act 1996 to "... secure that accommodation is available for occupation by the applicant." As part of the same letter, Islington informed the claimant that:

"Your homeless application has been assessed and under the current allocations policy you have a total of 110 points, broken down as

Homeless Points 10
Residence Points 100
Total 110

What happens now?

Your homeless application has been accepted by Islington Council and we will help you find a home. However, not everyone who applies for a council home will get one. In Islington there are over 13,000 people on the waiting list and there are not enough council homes to go around.

So while we will help you find somewhere to live it will probably not be a council flat ..."

6. Islington did find a larger flat for the claimant with two bedrooms into which she moved with her baby in late November 2015 and in which she still lives. She says that it is a suitable flat for herself and the baby, but it is privately rented on a weekly assured shorthold tenancy, and she has limited security as the landlord could claim possession at any time at one week's notice. She therefore continues to seek to obtain long-term social housing within Islington which, she says, "would provide me and my daughter with the stability we need."
7. However, the effect of having been awarded only 110 points is, under Islington's scheme, that she cannot bid for any properties which become available. On her behalf, Mr Ian Wise QC and Mr Stephen Broach argue that even although any bids may not be successful, the denial of the right even to bid is unlawful. Further, solicitors on behalf of the claimant challenged the award of only 110 points and asserted that she is entitled to an additional 90 "New Generation" points.
8. Islington maintained their position in a letter dated 23 February 2016, from which I will quote when I consider the New Generation claim from paragraph 55 below.

The points threshold claim

9. Under their published "Housing allocation scheme 2015", now at bundle tab 4, Islington state at page 22, "Who can bid? The Council will set thresholds for the points above which applicants will be eligible to bid ...". Their current points threshold is set at 120, and their housing options manager, Cora Nicholls, states at paragraph 4 of her witness statement dated 6 June 2016 that that threshold was introduced in February 2010.
10. The effect of that points threshold and of the claimant only being awarded 110 points is that although she is on the register, the claimant cannot bid for any property which may become available; and in effect that her application will not be given any further consideration at all unless either the threshold is lowered or removed, or she is later awarded or accrues more than 120 points. I stress, however, that the legal challenge is not to the current level of the threshold (viz. 120 points) but to the existence of any threshold below which an applicant, although entitled to reasonable preference, is not "eligible to bid". Islington deny that the application of a points threshold within their scheme before a registered applicant is eligible even to bid is unlawful. In addition, they say that practical and administrative considerations make some threshold essential. Cora Nicholls says at paragraphs 4, 5 and 6 of her statement dated 6 June 2016 that:

"4. ... The threshold assists in managing the bidding process by limiting the volume of applicants who are bidding and confining this group to those who have a realistic chance of actually being re-housed under the scheme. This remains under review as the operation of the scheme continues to be monitored.

5. The threshold has been set on the basis of the council's knowledge and experience of operating the scheme, in particular the number of priority points necessary to secure an allocation of accommodation. From April 2014 to April 2015 the council had 1204 properties that were available. The number of applicants on the Housing Register is approximately 20,733; approximately 8,517 applicants meet the bidding threshold.

6. Between April 2014 and April 2015, there were only 389 2-bed properties [viz. which the claimant needs] available. On average, successful applicants for these properties had 295 priority points; the lowest number of points for such a property was 226. There are approximately 2,087 applicants who are eligible to bid for 2-bed properties ..."

11. A table exhibited by Cora Nicholls indicates that the lowest number of points that resulted in a successful bid for a two-bedroom property in the year from April 2014-April 2015 was 134 points.
12. In evidence from the claimant's solicitor, who is clearly very experienced in housing matters in the Islington area, it is argued that average figures may mislead and that the minimum figure of 129 points for a successful bid may itself be skewed by the 120 point threshold. The solicitor says at paragraph 7 of her statement dated 14 June 2016 that:

"In [the claimant's] case ... her housing needs are ... relatively straightforward, and she might therefore be able to bid successfully for a relatively unpopular property ... Because the information about average points is not particularly informative, it is impossible to predict whether a bid with 110 points might in fact be successful."

13. Mr Wise and Mr Broach base their claim that the points threshold is illegal on two quite separate statutory bases: (i) section 166A of the Housing Act 1996; and (ii) section 11 of the Children Act 2004.

The claim under section 166A

14. So far as is material, the added section 166A of the Housing Act 1996, which came into force on 18 June 2012, provides as follows:

"166A

(1) Every local housing authority in England must have a scheme (their 'allocation scheme') for determining priorities, and as to the procedure to be followed, in allocating accommodation ...

(2) ...

(3) 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 ... 193(2) ...

(4) ...

(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); …

(11) Subject to the above provisions ... the authority may decide on what

principles the scheme is to be framed …"

15. As already explained, it is common ground in this case that the claimant is within the class of "people who are owed a duty" by Islington under section 193(2). Pursuant to section 166A(3), the scheme of Islington must be framed as regards priorities so as to secure that reasonable preference is given to that class of people, and accordingly to the claimant. The short submission of Mr Wise is that, far from giving reasonable preference to that class of people and to the claimant, the effect of the threshold is to deny to her any preference at all and to deny to her for the foreseeable future the opportunity even to make a bid.
16. It is possible under the Islington points scheme to later both increase or decrease points. Added points may be gained for listed factors, including, for instance, "welfare needs", "medical needs", and "relationship breakdown" (see the table at page 21 of the scheme document). Apart from these or other vicissitudes, all applicants, which includes the claimant, do receive added "waiting time points" which are calculated as 5 per cent per year on all points except residence points. The claimant has 10 points which are not residence points, so she would accrue waiting time points at the rate of half a point per year. In other words, unless her points increase for some other reason (including success on her New Generation claim), it will take her 20 years to accrue 120 points, and in the absence of any change in the scheme, she will not even be able to bid until then. By then, her baby daughter will be almost the same age as she is now.
17. Although section 166A was only recently added, the statutory expression "reasonable preference" in this context is not a new one. It is agreed between counsel and appears to be well established that the word "preference" must be read and understood in the sense of priority. There is now a considerable and still-growing body of authority in this field. An early case was R v Wolverhampton MBC ex parte Watters (1997) 29 HLR 931. There, the claimant was in a category of person who was entitled to reasonable preference under the legislation then in force, but she had significant rent arrears which had the effect under the housing authority's policy that she would not be admitted to their housing waiting list. It was argued on that claimant's behalf that "... because Parliament have ordained that reasonable preference is to be given, a council cannot treat it as reasonable not to grant any preference. Otherwise [the  then-relevant section] would be otiose." (See in the judgment of Leggatt LJ at page 935.)
18. That argument is substantially the same as the argument of Mr Wise in the present case. Leggatt LJ, with whose judgment both other members of the court agreed, said at page 936:

"If [the relevant section] simply required 'preference' to be given, [counsel's] argument would be correct. But it does not: it requires 'reasonable preference'. That envisages that other factors may weigh against ... or even nullify the preference ... No preference is to be given except reasonable preference. That involves balancing against the statutory factors such factors as may be relevant. So the council is entitled to take account of substantial arrears of rent due to the council ... it follows that, when in the council's judgment an applicant's rent arrears are such as to outweigh the reasonable preference that would otherwise avail him, that applicant will not be selected."

19. Judge LJ, with whose judgment Potter LJ expressed agreement, said at page 938:

"The statutory obligation ... therefore requires that positive favour should be shown to applications which satisfy any of the relevant criteria. To use colloquial language they should be given a reasonable head start. Thereafter all the remaining factors fall to be considered in the balancing exercise inevitably required when each individual application is under consideration. If despite the head start the housing authority eventually decides on reasonable grounds that the application for a tenancy must be rejected this will not constitute a breach of the obligations imposed by [the section]."

20. Watters clearly establishes that "other factors" may diminish or "even nullify the preference" after applying a balancing exercise, provided the applicant is first given "a reasonable head start". In my view, however, there is a material distinction from the facts of the present case. In Watters, there were factors adverse to the applicant, viz. the rent arrears, which outweighed and "nullified" the head start. In the present case, the claimant is not in rent arrears and her application has no adverse or outweighing factors. All that can be said is that she has an absence of factors which would otherwise entitle her to more points.
21. The expression "reasonable preference" was considered again by the Court of Appeal in R (on the application of Lin) v Barnet [2007] EWCA Civ 132, [2007] HLR 440. In that case (unlike the present case) the claimant, who was entitled to reasonable preference, had been entitled to bid, and had bid, for available properties but had not had enough points to be successful. The essential issue was the lawfulness of the respective number of points awarded to different categories of applicant, and whether the allocation scheme afforded reasonable preference to those entitled to it. Mr Wise submits that Lin v Barnet is distinguishable and simply not in point. The claimant in that case had not been prevented from bidding at all, whereas the present claimant has been. In that case, the essential challenge was to the numbers of points awarded to applicants with different attributes. In the present case, there is no challenge to the number of points awarded for the different attributes.
22. On behalf of Islington, Mr Christopher Baker nevertheless relies strongly on what Dyson LJ, with whom the other members of the court agreed, said at paragraphs 25 and 28:

"25. The test is not ... whether the homeless are 'excluded from allocation'. It is whether they are given 'reasonable preference' relative to persons who do not come within [the relevant section] ... Compliance with [the section] does not depend on outcomes ... Preference should not be confused with prospects of success. Prospects of success depend on many factors, of which the most material is the fact that the demand for accommodation greatly exceeds the supply. It is quite possible for a lawful scheme to give reasonable preference to a person within [the section] and for that person never to be allocated Part 6 housing ... 28. As to whether the preference is 'reasonable', it seems to me that this is a matter for the discretion of the council ..."

23. Reasonable preference was considered by the House of Lords in R (Ahmad) v Newham London BC [2009] UKHL 14. In that case the claimant, who was entitled to reasonable preference and had a very needy family, argued that the relevant scheme operated in such a way as to deny his needy family reasonable preference, being based on length of time on the waiting list rather than relative need. The House of Lords, reversing the Court of Appeal, rejected the claim. Although not in any way disputed by Mr Wise, Mr Baker emphasises what Baroness Hale of Richmond said at paragraph 12:

"... no one suggests that [the claimant] has a right to a house. At most, he has a right to have his application for a house properly considered in accordance with a lawful allocation policy. Part VI of the 1996 Act gives no one a right to a house. This is not surprising as local housing authorities have no general duty to provide housing accommodation."

24. At paragraph 16, Baroness Hale emphasised that what is now section 166(11) "... makes it clear that, subject to the express provisions, it is for the council to decide on what principles the scheme is to be framed." At paragraph 46, Lord Neuberger of Abbotsbury said:

"... as a general proposition, it is undesirable for the courts to get involved in questions of how priorities are accorded in housing allocation policies ... it seems unlikely that the legislature can have intended that judges should embark on the exercise of telling authorities how to decide on priorities as between applicants in need of rehousing, save in relatively rare and extreme circumstances. Housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge."

25. Lord Neuberger echoed and elaborated that point again at paragraph 62 of his judgment, which I bear firmly in mind. It needs to be noted, however, that Ahmad was concerned with a different issue from that in the present case. At paragraph 9, Baroness Hale said that the main ground of challenge was that it was said that the council required to have a policy which not only afforded to the listed groups reasonable preference over other groups of people, but also determined priority between the people in those groups in accordance with the relative gravity of their individual needs.
26. At paragraph 37, Lord Neuberger said that the primary issue on the appeal was whether the section required an authority to go further and accord priority as between reasonable preference applicants by reference to the relative gravity of their needs. That is not the issue in this case and not what Mr Wise, being mindful of the decision in Ahmad, contends for.
27. In R (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438, the claimant was homeless and in a class entitled to reasonable preference. She was then housed by the council in long-term suitable temporary accommodation with a private landlord. The housing authority's later new allocation scheme excluded from registration a person such as the claimant who had been placed in long-term suitable temporary accommodation, and the claimant's name was removed from the register. The Court of Appeal allowed the claim and held that the exclusion from registration of a person who was entitled to reasonable preference was unlawful. At paragraph 47 Richards LJ, with whom the other members of the court agreed, said that:

"The disqualification [from the register] ... is fundamentally at odds with the requirement under section 166A(3) ... to frame a scheme so as to secure that reasonable preference is given ... The great majority of people within that class, far from being given any preference, are excluded altogether from consideration for housing accommodation under the scheme; and they are excluded for a reason that cannot sit with Parliament's decision to define the section 166A(3) class as it did ..."

28. Mr Wise submits that there is no practical distinction between exclusion from the register and entry on the register but exclusion from being permitted to bid. Mr Baker submits that Jakimaviciute is not in point. It concerned disqualification, not priority, and he submits that this claimant has not been disqualified. Mr Baker fortifies his point by reliance upon what Richards LJ said at paragraph 50 that:

"... the council may wish to consider whether it is possible to reflect that factor in an appropriate banding structure under the scheme in place of the impermissible exclusion ..."

Mr Baker submits that the present case properly concerns a form of banding within the scheme rather than exclusion from it.

29. Two recent cases at first instance are strongly relied upon by Mr Wise. The first in date is R (Alemi) v Westminster CC [2015] EWHC 1765 (Admin). The claimant had become unintentionally homeless and was placed upon the local housing authority's housing register. Pursuant to the authority's scheme, she was only eligible for private sector rented accommodation for the first 12 months and not eligible to bid for social housing until 12 months had elapsed. She challenged the scheme as thereby denying to her reasonable preference during those 12 months. The claim was allowed and the material parts of the scheme quashed. His Honour Judge Blair QC said at paragraph 28:

"The differentiation which is permitted by the legislation ... is restricted to adjusting the relative priority of sub-groups by reference to features which do none the less afford them some [emphasis in the original] opportunity to be allocated [emphasis in the original] social housing within the LHA's current cycle, however remote that possibility might be."

30. Mr Wise submits that those words are directly in point. There must be some opportunity for people who are entitled to reasonable preference to be allocated social housing, and the claimant in this case, being ineligible to bid because she does not have 120 points, is in exactly the same position as the claimant in Alemi, who was ineligible to bid for 12 months. Mr Baker submits that Alemi is not on all fours and is distinguishable. In Alemi, the 12-month exclusion rule arbitrarily excluded the entire section 166A(3) group from bidding at all during that period. In the present case, the entire section 166A(3) group is not excluded from bidding, but only those within it who are not eligible for 120 or more points.
31. Mr Baker further submits that in any event what HHJ Blair said in paragraph 28 is wrong and should not be followed by me. It purports to create out of reasonable preference a duty to afford to applicants some opportunity actually to be allocated social housing. That is contrary to what Baroness Hale had said in paragraph 12 of Ahmed to the effect that there is no right to a house; only a right to have the application for a house properly considered in accordance with a lawful allocation policy. Mr Baker submits that an opportunity to have an application properly and lawfully considered does not amount to a right to some opportunity actually to be allocated housing. Mr Baker submits that it conflicts, too, with what Dyson LJ said in Lin at paragraph 25, that preference should not be confused with prospects of success. "Some opportunity to be allocated ..." connotes some prospect of success, whereas both Ahmad and Lin indicate that a scheme may be lawful even although the prospect of success is zero.
32. In R (HA) v Ealing London BC [2015] EWHC 2375 (Admin) the claimant, like the present claimant, fell within the section 193 duty and so required to be given reasonable preference, but the housing authority refused to place her on their housing register at all because she did not meet a condition in their allocation policy that applicants had to have lived within their area for a minimum of five years as a condition of joining the register. The claimant claimed that the effect of the policy was to impose an absolute exclusion from the register in contravention of the requirement to give reasonable preference. Goss J allowed the claim, declared the policy unlawful, and quashed the claim in that claimant's case. He held at paragraph 23 that:

"Although a residency requirement is an entirely appropriate and encouraged provision in relation to admission onto a social housing list, it must not preclude the class of people who fulfil the 'reasonable preference' criteria ... In this respect the policy is unlawful."

33. Mr Wise again submits that HA is materially on all fours with the present case, there being no material distinction between exclusion from the register and exclusion from being able to bid. Mr Baker submits that HA is materially different and distinguishable. It concerned an absolute bar against registration against all applicants that have not been resident in the borough for the last five years. There is no such bar in the present case and the claimant is already registered.

Discussion and decision on the section 166A(3) ground of claim

34. In my view there are material differences between the circumstances and issue in the present case and those in each of Jakimaviciute, Alemi and HA in which the challenges were successful. In Jakimaviciute, the claimant had been excluded altogether from registering under the scheme and was not able to reach the stage of banding under that council's scheme. In Alemi, although the claimant could register, there was an absolute bar against bidding for 12 months no matter how strong her case. In HA, the claimant was excluded altogether from the register.
35. The present case is different and does require to be distinguished. All the authorities which I have referred to above may inform, but none of them govern, the decision in this case. (As Alemi is in my view clearly distinguishable, I expressly refrain from expressing any view on whether HHJ Blair was right or wrong when he said that there had to be some opportunity to be allocated social housing.) There being in my view no authority directly in point, I have to decide this issue as a new point.
36. In my view, the setting of some points threshold before a registered applicant can actually bid does not offend section 166A(3) and is not of itself, for that reason, unlawful. By section 166A(1) the local housing authority must have an allocation scheme "as to the procedure to be followed." Procedure includes "all aspects of the allocation process". By section 166A(3) that scheme must be framed so as to secure that reasonable preference is given to the specified classes of people.
37. Islington do have a scheme. They have permitted the claimant to be registered within it. Pursuant to the scheme, they have allocated points to her which do include points for homelessness. So the scheme does make some preference for her homelessness. It is true that it accords only 10 points for homelessness, but Lin makes crystal clear that the court will not subvert the policy and decision of the housing authority as to the number of points to be awarded -- see Dyson LJ at page 451, paragraphs 27 and 28, where he said:

"... a person who has 10 points is in a better position to bid than a person who does not have 10 points. He is accorded preference ... whether the preference is 'reasonable' ... is a matter for the discretion of the council."

See, too, the passages at paragraphs 16, 46 and 62 in Ahmad which I have quoted or referred to at paragraphs 24 and 25 above.

38. In my view, the policy and decision of the housing authority to award 10 points for homelessness does fulfil their statutory duty to secure that preference is given to the claimant, and I cannot adjudicate on the reasonableness of the preference so given. In my view, the setting of the bidding threshold is a different aspect of the overall allocation process, not itself concerned with the issue of preference or priorities. Preference has already been assessed by the awarding of points.
39. The bidding threshold involves practical recognition of the fact to which Dyson LJ referred in Lin that the demand for accommodation greatly exceeds the supply. The claimant's solicitor says that it is at least theoretically possible that a person with less than 120 points "might ... be able to bid ... for a relatively unpopular property ...". But when Islington were framing their policy they were entitled, in my view, to take into account their assessment of the degree of unlikelihood of that theoretical possibility actually materialising.
40. It was in my view entirely lawful for Islington to decide, as Cora Nicholls describes in paragraph 4 of her statement, quoted at paragraph 10 above, that a threshold assists in managing the bidding process by limiting the volume of applicants who are bidding to those who have a realistic chance of actually being rehoused under the scheme. They keep the level of their threshold under review by monitoring it. The level at which they set their threshold is a matter for their judgment, not that of the court. Mr Wise firmly submits that there should be no threshold at all. I cannot accept that submission, for the reasons given. His argument would have to be the same even if the threshold was set at, for instance, 90; but I cannot adjudicate upon the rationality or lawfulness of the point at which it is actually set.
41. For these reasons, I reject the first head or ground of challenge to the points threshold based on section 166A(3) of the 1996 Act.

The claim under section 11 of the Children Act 2004

42. Section 11 of the Children Act 2004 applies to, amongst other bodies, a local authority in England, which Islington are. So far as is material, section 11(2) provides as follows:

"11(2) Each ... body to whom this section applies must make arrangements for ensuring that -

(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; ..."

43. The scope and impact of section 11 has recently been considered by the Supreme Court in Nzolameso v Westminster City Council [2015] UKSC 22. The single judgment of that court was given in April 2015 in the period after the earlier case of Mohamoud v Kensington & Chelsea RLBC [2015] EWCA Civ 780 had been argued, although before the Court of Appeal actually handed down their judgments in that case. In Nzolameso the claimant was unintentionally homeless. She had five children and the local housing authority offered her temporary accommodation in Milton Keynes, some 40 miles away, saying that they had no sufficiently large and suitable accommodation within their own area. The case was not one of judicial review but a statutory appeal to the county court under section 204 of the Housing Act 1996.
44. One limb of the ultimate appeal to the Supreme Court was grounded upon section 11(2). Giving the judgment with which all members of the Supreme Court agreed, Baroness Hale of Richmond said at paragraph 24:

"24. It has been held that section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case."

The area of the impact of the section is accordingly wide.

45. At paragraph 25, Baroness Hale said:

"25. In the homelessness context, there is a distinction between the factual decisions which the authority have to make and an exercise of discretion or evaluation. Thus it has been held that section 11 has no part to play in the decision as to whether a person's actions are deliberate for the purpose of deciding whether she is intentionally homeless ..."

and the judgment of Moses LJ in Huzrat v Hounslow LBC [2014] HLR 201 at paragraph 26 is referred to. I bear that distinction very firmly in mind.

46. At paragraph 28, Baroness Hale stressed that section 11 does not in terms require that the child's welfare should be the paramount or even a primary consideration. Indeed, the section requires only that regard is had to the need to safeguard and promote the welfare of children. At paragraph 32, Baroness Hale said that:

"32. It must be clear from the decision that proper consideration has been given to the relevant matters required by the Act ... While the court should not adopt an overly technical or 'nit-picking' approach to the reasons given in the decision, these do have to be adequate to fulfil their basic function ... Nor, without a proper explanation, can the court know whether the authority have properly fulfilled their statutory obligations."

47. At paragraph 37 of her judgment, Baroness Hale founded the decision to allow the appeal on a number of reasons, but these specifically included:

"I would add that they [viz. the housing authority] also cannot show that they have properly discharged their obligation under section 11 of the Children Act 2004."

Whilst cases such as this should not be decided upon the application of some concept of the burden or onus of proof, that sentence clearly imports that, in the opinion of the Supreme Court, there was some obligation upon the authority to show that they had properly discharged their statutory obligation, which in that case they failed to show.

48. In the present case, Islington say that they did have due regard to the need to safeguard and promote the welfare of children, both generally when framing their scheme and specifically when considering the case of the claimant and her daughter specifically. The scheme includes the possibility of discretionary points being awarded for "welfare needs", and the different "welfare categories" described as A or C on pages 13 and 14 of the Housing Allocation Scheme may attract 150 or 40 points respectively. (The intermediate welfare category B, which may attract 80 points, appears not to be in point, for it applies to caregivers or to bereaved spouses or partners of those serving in the regular forces whose death was wholly or partly attributable to their service.)
49. Cora Nicholls says at paragraphs 7-11 of her statement that the needs of the claimant's daughter were considered at the time of the offer of the current accommodation and there was liaison with the social services department. The welfare points element of the scheme was discussed with the social services department when it was introduced; and when considering whether points ought to be allocated for welfare, the housing authority will contact social services "as they did in this matter". She concludes:

"In light of this and the above, it is evident that the council have made arrangements for ensuring that their function under s.166(1) in framing the housing allocation scheme was discharged having regard to the need to safeguard and promote the welfare of children."

50. The decision letter itself dated 23 February 2016, now at bundle tab 3, pages 57-58, makes express reference to welfare points; states that the decision-maker has made enquiries with the council's children's services; and explains why welfare points have not been awarded, adding, "I am happy to reconsider your request should more relevant information become available."
51. Mr Wise meets this evidence by stressing that his challenge is specifically to the points threshold for bidding. He says that it does not avail Islington that they may have had general regard for the claimant's daughter. He submits that the points threshold has been adopted and maintained in breach of the section 11 duty. I cannot accept this argument, essentially for similar reasons to those I have given in relation to the reasonable preference argument. I accept the evidence of Cora Nicholls that, prior to the introduction of their present allocation scheme, the housing authority did discuss it with the social services department and discussed with them in particular the welfare points element in the scheme. I also accept the evidence more generally of Cora Nicholls that the local authority have a joint working protocol between the children's services and the housing services as described at paragraph 10 of her statement. And I accept that when considering whether points ought to be allocated for welfare, the housing services will contact the social services and that they did do so in this case as she describes at paragraph 11. All this constitutes having regard to the need to safeguard and promote the welfare of children generally and the claimant's daughter specifically.
52. The welfare category A threshold for 150 points as described in the allocation scheme at page 13 is a very high one, and the document states that "this very high award will rarely be made". The stated reason is that "if too many households receive this high award, it will slow down the rehousing of the most vulnerable people." Welfare category C awards much fewer points (40) but the criteria include that:

"The applicant's household includes someone with a need for settled accommodation on welfare or medical grounds who cannot reasonably be expected to find accommodation for themselves in the near future."

53. Although not limited to children, those words are clearly wide enough to include consideration of children. In my view, the having of that category and its consideration in individual cases also involves having regard to the need to safeguard and promote the welfare of children. Provided the welfare of children can be sufficiently safeguarded and promoted in individual cases by the award of welfare points, there is in my view no inconsistency between the statutory duty under section 11 and the setting of a points threshold for the practical reasons already discussed. I accordingly reject the second head or ground of challenge to the points threshold based upon section 11 of the 2004 Act.
54. Whilst other grounds may yet exist for challenging the lawfulness of the points threshold in Islington's scheme which have not been advanced before me, I reject that the policy is unlawful on the basis of any ground or argument addressed to me in the present proceedings.

This case and the New Generation policy

55. Islington's scheme provides that in certain circumstances points will be awarded under their New Generation scheme. If the applicant needs one bed (which I understand to mean one bedroom), 20 points will be awarded. If he/she needs two beds, 90 points will be awarded. At page 21 of their scheme, those points will only be awarded to "all other applicants" but not to council tenants, housing association tenants or homeless applicants. At page 17 of the scheme document, the New Generation scheme is described as follows:

"New Generation scheme

The scheme is open to the sons and daughters of council, housing association and private sector tenants living with their parents in the borough ...

The criteria for the scheme are -

applicants must be aged eighteen years or above

applicants must be living continuously as an agreed member of the household of an Islington resident for at least three out of the last five years

proof of residence will be required ..."

56. When the historical facts of this case are more closely examined, it may (I stress may) transpire that the claimant's mother was not herself an Islington resident for sufficiently long as she did spend periods living outside Islington, although nearby. For the purpose of the argument and my decision, however, it is assumed that the mother herself resided sufficiently long within Islington. The reason why Islington rejected an award of New Generation points is specifically that the claimant herself is not eligible, because as she had been temporarily rehoused by Islington she was no longer living with her mother at the date of the decision. The decision letter dated 23 February 2016 states as follows:

"New Generation Scheme

I have also considered your request for an additional 90 points because your client joined the housing register and was part of her mother's household. ... I note that [the claimant] was resident with her mother in the borough but she is no longer living with her parents. [Her] current housing needs have been reassessed and appropriate points have been awarded to her based on her current accommodation. I am satisfied that [she] is not entitled to this additional points based on the council's allocation policy as she is no longer living in a social housing tenancy [my emphasis]."

57. The last words in that quotation, which I have highlighted, are in fact a clear misapplication of the New Generation scheme, since it is clear from the express words of the scheme quoted in paragraph 55 above that it is not limited to applicants who are living in a social housing tenancy. It expressly applies to children of "council, housing association and private sector tenants". The sting in the letter, however, is the proposition that the claimant "was" part of her mother's household and that "she is no longer living in" that household.
58. Cora Nicholls says at paragraphs 14-16 of her statement that:

"14. In order for points to be allocated under the New Generation scheme, there is a continuing requirement for the applicant to be 'living' in the relevant parental household.

15. Generally, the purpose of this scheme is to assist the next generation of Islington residents living with their parents in council, housing association and private sector rented accommodation, to obtain their own accommodation for themselves and/or their families.

16. [The claimant] has not been continuously residing with her mother, and cannot reasonably expect points under the New Generation Scheme to be awarded at this stage; in the event that she was residing with her mother continuously then she would have been considered under this particular scheme."

59. Islington thus interpret and apply their New Generation scheme in a way that creates something of a "catch-22" for an applicant such as this claimant. When she first applied in June 2015 she did (it is assumed) fall within the New Generation scheme, entitling her to an additional 90 points as she required two bedrooms (once her expected child was born). She was then temporarily rehoused by Islington, although they accept that she remains homeless. On their interpretation, the moment the claimant moved into that temporary rehousing on 15 July 2015 she lost her entitlement to 90 points under the New Generation scheme. Mr Wise submits that if the scheme is correctly construed and applied she should not have done.
60. As there is a dispute as to its construction, meaning and effect, the construction or interpretation of the scheme is a matter for the court. Mr Baker has drawn my attention to passages in the judgments of Sullivan LJ and Lord Neuberger MR in R (Ariemuguvbe) v Islington LBC [2009] EWCA Civ 1308 at paragraphs 24 and 31 respectively. Sullivan LJ said that schemes such as this should be "read in a practical, common sense, and not in a legalistic way." Lord Neuberger said that:

"It is plainly right for the court to apply a common sense and a practical approach to the interpretation of the scheme, and indeed an interpretation which allows a sensible degree of flexibility when it comes to dealing with individual cases."

I will adopt that approach.

61. The first paragraph of the scheme under the heading "New Generation Scheme" quoted at paragraph 55 above is a short generalised description of the scheme, although it does clearly employ the words "living with" in the present tense. Much more difficult is the second bullet point under the specified criteria. It begins with the words "must be living continuously ...", which again clearly employs the present tense and also the concept of continuity. But Mr Wise fastens on to the closing words of that bullet point, "for at least three out of the last five years."
62. Mr Wise submits that consideration of at least three out of the last five years necessarily imports that those three years need not be the last three years and continuing. He submits, further, that the relevant date for determining whether the criteria for New Generation scheme points are satisfied must be the date of the application (when it is agreed that the claimant was still living with her mother) and not the arbitrary date when the housing officer decides upon the application.
63. I cannot accept this particular submission. The facts and circumstances of a case may change, whether favourably or unfavourably to a particular application. The application form makes very clear on page 2, now at bundle page 2-13, that an applicant must let Islington know as soon as possible if there is any change in circumstances, and the declaration immediately above the signature on page 25 includes that:

"I will tell you immediately about any changes to my household details, housing circumstances or any other information provided on this form."

64. Mr Baker submitted that the use of the present tense in the words "living with" and "must be living continuously as an agreed member of the household" is determinative and must require that the applicant remains so living at the date the question of eligibility for New Generation points is being determined. In my view, this construction cannot prevail in the face of the words "... for at least three out of the last five years", which must have been included deliberately and are integral to the criteria of the policy. The living must have been continuous for at least three years, so a continuous block of at least three years is required. An applicant cannot aggregate shorter periods to add up to three years. For instance, living in the household in years 1, 3 and 4 of the last five years could not suffice, because the break in year 2 negatives living continuously for at least three years. But the reference to at least three out of the last five years can only make sense if the block of three years does not need to be continuing at the end of the five years. Otherwise the phrase "out of the last five years" is rendered both otiose and confusing. If the block of three years has to be continuing at the moment of decision, then the criterion would simply say "for at least the last three years" or some such words.
65. Cora Nicholls has said that generally the purpose of the scheme "is to assist the next generation of Islington residents living with their parents ... to obtain their own accommodation ...". Mr Baker suggested that the purpose or policy, or at any rate one purpose or policy, is to encourage parents not to require their adult children to leave home, and/or to encourage adult children to decide to stay at home with their parents, thereby reducing the demand for social housing. Mr Baker submitted that this is achieved by the incentive of New Generation points which are lost if the adult child does leave home, whether under pressure from his parent or of his own volition.
66. There is no evidence from Islington that this is part of their purpose or policy, and the suggestion does not lie easily with the evidence of Cora Nicholls as to the purpose of the scheme, which is more generally, and indeed more generously, to assist the next generation to obtain their own accommodation.
67. The interpretation for which Mr Baker contends, which makes actual current living with the parent essential, could lead to absurd results and frustrate the obvious intention and purpose of the policy in certain circumstances. For example, an adult child could have been living continuously with his parent in rented accommodation in Islington for many years and maybe all his life. His parent then dies, or is imprisoned, or has to enter residential care, or is evicted from the property. At the very moment when the young long-term resident of Islington may be at his most needy he would, on the interpretation of Islington and Mr Baker, be denied New Generation points on the argument that although he was or had been so living, he is not now so living.
68. In my view, the words "... continuously ... for at least three out of the last five years ...", considered in conjunction with the overall policy objective, must be decisive. It is possible to read the words "be living" as meaning also "or have been living". It is not possible to strike out the words "out of the last five years" as the argument requires. In my view, this construction is the more common sense and practical, and the less legalistic, of the rival interpretations contended for. To a lay person, three out of the last five years means exactly what it says.
69. It follows that in my view Islington misapplied their own policy. I will quash the decision of 23 February 2016 insofar as it refused or declined to award to the claimant any New Generation points. Islington must reconsider that decision in the light of this judgment; but they are, of course, entitled to investigate and decide whether the claimant does satisfy all the criteria, and this may require investigation of whether the claimant was actually living continuously as a member of her mother's household within Islington for at least the required three years.
70. On the facts of the present case it is not in dispute that the claimant was living as an agreed member of her mother's household in Islington on the date on which she made her application. Any doubt pertains to earlier periods. I make clear, however, that the scheme as presently worded does not require the applicant to be so living at the date of the application. What is necessary, and accordingly what is sufficient, is that an applicant can prove that he or she was living continuously as an agreed member of the household of an Islington resident for a continuous block of at least three years during the last five years. It would suffice, therefore, that a person had been so living continuously for three years within the last five years even although he had not been for the last two years. If that is more generous than Islington wish, then they must reformulate and redraft their scheme. I dismiss the remainder of the claim under grounds A and B of the claimant's grounds dated 3 March 2016.
[END OF JUDGMENT]
71. MR JUSTICE HOLMAN: Now, I imagine it will not be very difficult to draw up an order to give effect to that. A draft order was sent with an email, but obviously paragraphs 1 and 2 are not in point because I am dismissing the claim under grounds A and B. You know what I am referring to, do you? And C, in fact the language would not reflect the judgment, because the language of the draft is a declaration that on the proper construction of the scheme it is necessary for applicants to be living with their parents at the time of their application for housing, but not necessary for them to continue to do so thereafter. I have just made very clear that I do not consider it is necessary at the time of the application.
72. MR WISE: I wonder if the sensible way forward is to dispense with the declaration on ground C and merely have the quashing order in your judgment?
73. MR JUSTICE HOLMAN: I should think that would be very sensible. It would certainly save the headache of redrafting this. So you can just simply say something like, "The claim under grounds A and B is dismissed."
74. MR WISE: Yes.
75. MR JUSTICE HOLMAN: "The decision is quashed under ground C and must be reconsidered." And patently when they reconsider, they will have to reconsider it having regard to the content of the judgment.
76. MR WISE: Precisely, that is absolutely correct, my Lord.
77. MR JUSTICE HOLMAN: What is the situation in regard to costs? Does anybody make any application that another party pays any costs of or incidental to this, is the first question?
78. MR WISE: Could you just bear with me one moment, my Lord?
79. MR JUSTICE HOLMAN: Yes.
80. MR WISE: No, we do not.
81. MR JUSTICE HOLMAN: Right, you are not making an application against Islington?
82. MR WISE: No.
83. MR JUSTICE HOLMAN: Do you make any application - apart from the legal aid protection - against the claimant, Mr Baker?
84. MR BAKER: In that event, I am instructed to make no application.
85. MR JUSTICE HOLMAN: All right. So this bit of the order can say, "By consent there be no order as to the costs of either party as between the parties of and incidental to this claim", yes?
86. MR WISE: Yes.
87. MR BAKER: That is very much predicated on your Lordship's judgment, obviously.
88. MR JUSTICE HOLMAN: I know, but that is my judgment and that is the order. So that being the judgment and that being the order, you are not asking for costs against them and they are not asking for costs against you? Does Mr Broach have that wording down?
89. MR BROACH: I believe so, my Lord. Yes, I have that.
90. MR JUSTICE HOLMAN: "By consent there be no order as to the costs of either party as between the parties of and incidental to this claim". There will be detailed public funding assessment of the claimant's costs, or whatever jargon you wish to use.
91. Does anybody wish to make any other application?
92. MR WISE: That just leaves the question of appeal, my Lord. Whilst we are, of course, grateful for the very conscientious way in which your Lordship has dealt with this matter and the speed with which you delivered the judgment we are, as you would expect, disappointed --
93. MR JUSTICE HOLMAN: I am sure you are.
94. MR WISE: -- in particular with respect to grounds A and B.
95. MR JUSTICE HOLMAN: And Islington may be disappointed with the outcome on C. But you can never, ever have a judgment in a case like this without some disappointment in the courtroom.
96. MR WISE: Absolutely. We are firmly of the view that with respect to ground A and B there are realistic prospects --
97. MR JUSTICE HOLMAN: You can go and argue it to the Court of Appeal. I am afraid I am refusing permission to appeal --
98. MR WISE: Very well.
99. MR JUSTICE HOLMAN: -- to you, and I probably will to Mr Baker if he makes --
100. MR BAKER: My Lord, I make a counter-application in respect of ground C. It is an important matter for Islington because obviously --
101. MR JUSTICE HOLMAN: You can go and argue it to the Court of Appeal. I am afraid I always have an intellectual difficulty, when I have thought about something very carefully and given a fully reasoned judgement, in conceiving that I am wrong, and I have a considerable degree of confidence on all points. So anybody who wants it will have to go to the Court of Appeal.
102. MR BAKER: Your Lordship will recognise from counsel's point of view it is also somewhat invidious to ask a judge who has (Inaudible) conclusions to grant it.
103. MR JUSTICE HOLMAN: I know. What is the time for renewing an application to the Court of Appeal?
104. MR WISE: Twenty-one days.
105. MR BAKER: Twenty-one days, yes.
106. MR JUSTICE HOLMAN: I would be perfectly happy to extend it to 21 days from the date upon which the party in question has the approved transcript of this judgment. So would Mr Broach therefore further add that the applications of both parties for permission to appeal to the Court of Appeal are refused, and the time for either party to renew an application for permission to the Court of Appeal is extended to 21 days after receipt by that party of the official approved transcript of the judgment given today. It is possible that may have quite a long delaying effect, because I go away in just over two weeks' time, so unless I get it back and can deal with it before that, it will just sit electronically on my computer until the middle of September. But I cannot help that.
107. MR WISE: My Lord, at the outset of the hearing there was some discussion about an anonymity order. Your Lordship has carefully crafted your judgment in such a way as to make such an anonymity order unnecessary in our view, and we are happy to dispense with an order if it exists at the moment.
108. MR JUSTICE HOLMAN: I do not think one does exist, does it? I did, as you say, carefully craft it.
109. MR WISE: So we do not apply for an anonymity order.
110. MR JUSTICE HOLMAN: Well, I do not think one was made, and I will not make one. So this in fact will go then as The Queen on the application of Georgia Woolfe v London Borough of Islington.
111. Is there anything else which now arises, Mr Wise?
112. MR WISE: The other formality at the beginning of the hearing, your Lordship recalls, was the admission of my solicitor's statement. I cannot recall whether you formally admitted that statement.
113. MR JUSTICE HOLMAN: I think it was agreed that it should be admitted, was it not? I thought Mr Baker said he was not taking any point on that?
114. MR BAKER: Just comments.
115. MR JUSTICE HOLMAN: It is in. I mean, we do not need to draw an order up about that, do we? It is in, in fact I have quoted from it in the judgment.
116. MR WISE: That is great. Obviously if the matter does go up, then we need to know whether we ad
117. mitted it.
118. MR JUSTICE HOLMAN: If you badly want to add a paragraph saying that that statement is admitted --
119. MR WISE: It was agreed by all the parties that it is an uncontentious statement.
120. MR JUSTICE HOLMAN: I really do not think it is necessary.
121. MR WISE: No other matters, my Lord.
122. MR JUSTICE HOLMAN: Any other matters, Mr Baker?
123. MR BAKER: My Lord, no, I am grateful.
124. MR JUSTICE HOLMAN: Well, some disappointment all round, I appreciate, but I suppose also some measure of whatever the opposite of disappointment is on both sides.
125. MR WISE: Optimism.
126. MR JUSTICE HOLMAN: So there we are, that is my decision. Mr Wise and of course Mr Broach and indeed your solicitor behind you, and Mr Baker, it was a very great pleasure actually to listen to this case last week. It was extremely well argued both on paper and orally, and as always the better it is argued, very often the more difficult it is to decide. But I did very much enjoy listening to all of you, so thank you very much indeed.
127. If the solicitor could convey my very best wishes to her client, I am very sorry that she felt that she could not come again today because she had the baby, because I can assure you that babies are extremely welcome in this courtroom provided they are reasonably well behaved. She could have just sat there as far as I am concerned, in her buggy or carry cot or whatever she is in, and we would have been very pleased to see her. But it was not to be. Would you please say that the judge is very sorry that I did not see her again today, and I send her my very best wishes for the future.
128. All right. Thank you all very much indeed.