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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Woolfe, R (On the Application Of) v London Borough of Islington  EWHC 1907 (Admin) (15 July 2016)
Cite as:  EWHC 1907 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|The Queen on the application of GEORGIA WOOLFE
|LONDON BOROUGH OF ISLINGTON
WordWave International Limited
Trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr Christopher Baker (instructed by Islington Legal Services) appeared on behalf of the defendants
Crown Copyright ©
MR JUSTICE HOLMAN:
Introduction and the claim
The essential facts
"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
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 ..."
The points threshold claim
"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 ..."
"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."
The claim under section 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 ...
(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) ...
(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 …"
"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."
"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]."
"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 ..."
"... 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."
"... 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."
"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 ..."
"... 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.
"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."
"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."
Discussion and decision on the section 166A(3) ground of claim
"... 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.
The claim under section 11 of the Children Act 2004
"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; ..."
"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.
"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  HLR 201 at paragraph 26 is referred to. I bear that distinction very firmly in mind.
"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."
"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.
"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."
"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."
This case and the New Generation policy
"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 ..."
"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]."
"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."
"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.
"I will tell you immediately about any changes to my household details, housing circumstances or any other information provided on this form."