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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ahmad, R (on the application of) v London Borough of Newham [2007] EWHC 2332 (Admin) (11 September 2007) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2007/2332.html Cite as: [2007] EWHC 2332 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
THE QUEEN ON THE APPLICATION OF AHMAD |
Claimant |
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v |
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LONDON BOROUGH OF NEWHAM |
Defendant |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR CHRISTOPHER BAKER (instructed by Legal Services London Borough of Newham) appeared on behalf of the Defendant
____________________
Crown Copyright ©
Introduction
The Challenge to the Medical Assessments
The Challenge to the Scheme
The Statutory Context
"(1) Every local housing authority shall have a scheme (their 'allocation scheme') for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.
For this purpose 'procedure' includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken.
(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to -
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local housing authority under section 190 (2), 193 (20 or 195 (2) (or under section 65 (2) or 68 (2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192 (3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds [(including grounds relating to a disability); and
(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or others).
The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of people with urgent housing needs)."
"(1A) The scheme shall include a statement of the authority's policy on offering people who are to be allocated housing accommodation -
(a) a choice of housing accommodation; or
(b) the opportunity to express preferences about the housing accommodation to be allocated to them."
"(2A) The scheme may contain provision for determining priorities in allocating housing accommodation to people within sub-section (2); and the factors which the scheme may allow to be taken into account include -
(a) the financial resources ..... ;
(b) any behaviour of a person ..... ; and
(c) ..... local connection ..... "
Further provisions about those matters were added by Sections (2B), (2C), (2D) and (2E) and (4A) as follows:
"(2B) Nothing in sub-section (2) requires the scheme to provide for any preference to be given to people the authority have decided are people to whom sub-section (2C) applies.
(2C) This sub-section applies to a person if the authority are satisfied that -
(a) he, or a member of his household, has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority; and
(b) in the circumstances at the time his case is considered, he deserves by reason of that behaviour not to be treated as a member of a group of people who are to be given preference by virtue of sub-section (2).
(2D) Sub-section (8) of section 160A applies for the purposes of sub-section (2C) above as it applies for the purposes of sub-section (7) (a) of that section.
(2E) Subject to sub-section (2), the scheme may contain provision about the allocation of particular housing accommodation -
(a) to a person who makes a specific application for that accommodation;
(b) to persons of a particular description (whether or not they are within sub-section (2)).]
(3) the Secretary of State may by regulations -
(a) specify further descriptions of people to whom preference is to be given as mentioned in sub-section (2), or
(b) amend or repeal any part of sub-section (2).
(4) The Secretary of State may by regulations specify factors which a local housing authority shall not take into account in allocating housing accommodation.
[(4A) The scheme shall be framed so as to secure that an application for an allocation of housing accommodation -
(a) has the right to request such general information as will enable him to assess -
(i) how his application is likely to be treated under the scheme (including in particular whether he is likely to be regarded as a member of a group of people who are to be given preference by virtue of sub-section (2)); and
(ii) whether housing accommodation appropriate to his needs is likely to be made available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him;
(b) is notified in writing of any decision that he is a person to whom sub-section (2C) applies and the grounds for it;
(c) has the right to request the authority to inform him of any decision about the facts of his case which is likely to be, or has been, taken into account in considering whether to allocate housing accommodation to him; and
(d) has the right to request a review of a decision mentioned in paragraph (b) or (c), or in Section 160A (9), and to be informed of the decision on the review and the grounds for it.]
(5) As regards the procedure to be followed, the scheme shall be framed in accordance with such principles as the Secretary of State may prescribe by regulations.
(6) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.
(7) Before adopting an allocation scheme, or making an alteration to their scheme reflecting a major change of policy, a local housing authority shall -
(a) send a copy of the draft scheme, or proposed alteration, to every registered social landlord with which they have nomination arrangements (see Section 159 (4)), and
(b) afford those persons a reasonable opportunity to comment on the proposals.
(8) A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme."
"5.9 It is important that the priority for housing accommodation goes to those with greater housing need. In framing their allocation scheme to give effect to s.167 (2), housing authorities must have regard to the following considerations -
a) the scheme must include mechanisms for;
i) ensuring that the authority assess an applicant's housing need, and for
ii) identifying applicants in the greatest housing need
(b) the scheme must be framed so as to give reasonable preference to applicants who fall within the categories set out in s.167 (2), over those who do not;
c) the reasonable preference categories must not be treated in isolation from one another. Since the categories can be cumulative, schemes must provide a clear mechanism for identifying applicants who qualify under more than one category, and for taking this into account in assessing their housing need;
d) there is no requirement to give equal weight to each of the reasonable preference categories. However, housing authorities will need to be able to demonstrate that, overall, reasonable preference for allocations has been given to applicants in all the reasonable preference categories. Accordingly it is recommended that housing authorities put in place appropriate mechanisms to monitor the outcome of allocations; and
e) a scheme may provide for other factors than those set out in s.167 (2) to be taken into account in determining which applicants are to be given preference under a scheme, provided they do not dominate the scheme at the expense of those in s.167 (2). (See para 5.25 below).
Otherwise, it is for housing authorities to decide how they give effect to the provisions of s.167 (2) of the 1996 Act in their allocation scheme."
"the reasonable preference categories must not be treated in isolation from one another. Since the categories can be cumulative, schemes must provide a clear mechanism for identifying applicants who qualify under more than one category, and for taking this into account in assessing their housing need."
"there is no requirement to give equal weight to each of the reasonable preference categories. However, housing authorities will need to be able to demonstrate that, overall, reasonable preference for allocations has been given ..... "
and -
"e) a scheme may provide for other factors than those set out in s.167 (2) to be taken into account ..... provided they do not dominate the scheme at the expense of those in s.167 (2) ..... "
The Authorities
"In reaching my conclusions on this issue, I have taken careful account of the fact that the court is concerned with a broad discretionary power and must be careful not to impose upon the authority, under the guise of judicial review, judgments that are properly those of the authority or obligations that Parliament has refrained from imposing ..... (e.g. by requiring it to determine priorities by reference solely to housing need or to give reasonable preference to transfer applicants falling within defined categories of need). The principles of public law nevertheless have an important role to play in determining whether the authority has exercised its discretion lawfully."
He concluded further down the page:
"In my judgment, however, the problem about the scheme goes deeper than that. In determining priorities for the allocation of available housing accommodation to transfer applicants, the authority has decided to place very considerable weight on the respective housing needs of applicants. That is evident from the wording of the Allocations Scheme, from the authority's evidence relating to the scheme and indeed from the authority's eventual decision in relation to the present applicants. It is also evident from the fact that the authority has decided to apply the same system for determining priorities to transfer applicants as to waiting list applicants to whom the 'reasonable preference' provisions of Part VI of the 1996 Act and the related paragraphs of the Code of Guidance apply. Thus far, the approach is entirely understandable and reasonable. Of course, housing need is not the only factor taken into account. Waiting time is another; management considerations (decants, etc.) are relevant and may be overriding in appropriate cases. Housing need is, however, a very important factor. The question then arises, however, whether the authority's approach to the assessment of housing need is a rational approach. That is where the deeper problem seems to me to lie."
Having reviewed the particular scheme, he concluded:
"The conclusion I reach is that the authority's present allocations scheme, in failing to make adequate provision for a composite assessment of housing need, is one that no reasonable authority would adopt and is unlawful for that reason."
"The various categories of need identified in section 167, and in the 1997 Regulations, are not to be treated, it seems to me, as separate watertight compartments. They identify needs which are capable of being cumulative. And it is only in that way that a proper judgment can be made of the respective needs of persons on the list."
He went on to refer to Mr Justice Richards' judgment in Islington. Both these authorities were considered and approved by the Court of Appeal in R (A) v Lambeth London Borough Council, R (Lindsay) v Lambeth London Borough Council, [2002] EWCA Civ 1084, (2002) HLR 57. It should be noted that the decision was given after the Housing Act 2002 had been enacted but before it came into force.
"18 I now turn to consider the argument that, even if the Group (particularly group D) comprised only those entitled to preference, the scheme would still be unlawful because it fails to provide a means of giving priority to those who fall within more than one category (the so-called composite need) or those in Category (e) who are entitled to the additional preference. Parliament has left it to the Authority to decide how to assess the various categories and what weight should be attached to each. In fact, what the Authority must do is to assess the needs of each applicant and endeavour to give preference to those in greater need. This is what Lambeth says its scheme is designed to do and it asserts that it succeeds in so doing. In reality, a judgment has to be formed by someone when faced with competing needs and a woefully inadequate availability of suitable accommodation."
Mr Justice Collins said further at paragraph 19:
"Any scheme which is aimed at an assessment of comparative need will be imperfect. Whether done by means of quotas or points with an injection of discretion or howsoever, it will inevitably involve elements of subjective judgment and individuals will feel that their needs are greater than those of others who have been given priority over them."
He rejected a submission at paragraph 25 of his judgment that the scheme has to contain a particular degree of precision, and said that the wording of the Act does not require it:
"The scheme must set out all aspects of the allocation process, but it is not necessary to do more than Lambeth has done, that is to explain what criteria apply to each Group and to indicate that an officer will allocate in accordance with those criteria which maybe general. Equally, although it is unlawful for other reasons, self-assessment is sufficiently explained."
In the event, that scheme failed.
"I agree with Collins J (and Sullivan J [below]) that the council's allocation scheme is unlawful by reason of its failure to give preference over the 96 per cent of applicants who are entitled to the statutory preference over the 4 per cent who are not. The 4 per cent cannot for present purposes be dismissed as too small to matter."
He said ar paragraph 40:
"I also agree with Collins J, and the judgments cited that the allocation scheme must provide fuller guidance in identifying needs, including a recognition that the factors in section 167 (2) may operate cumulatively."
"the scheme may also be framed so as to give additional preference to particular descriptions of people within this sub-section (being descriptions of people with urgent housing needs)."
"21 The criticisms which are made by the claimants are essentially criticisms of the approach followed by the defendant, and in particular the alleged failure of that approach to take proper account of composite need where it arises. In this regard, it is important to bear in mind that the assessment of need and the identification priorities cannot be an exact science. It inevitably involves the exercise of judgement and the balancing of a wide range of demands and needs. Thus Collins J observed in R (on the Application of A) v Lambeth LBC [2002] EWCA Civ 1087; [2002] HLR 57:
'Any scheme which is aimed at an assessment of comparative need will be imperfect. Whether by means of quotas or points with an injection of discretion or howsoever, it will inevitably involve elements of subjective judgement and individuals will feel that their needs are greater than those of others who have been given priority over them.'
Nevertheless, the exercise of judgment in individual cases must take place within a framework which conforms with the requirements of the legislation.
.....
31 I accept the submission of the claimants that the defendant's published scheme does not allow for cumulative grounds for the grant of preference to be recognised and reflected in an assessment of housing need. There is no mechanism in the published scheme whereby a household qualifying a number of times over for reasonable preference can, on the basis of its cumulative need, qualify for additional preference. Indeed it was common ground in the course of argument before me that under the published scheme such a household could not qualify for additional preference unless at least one member could cross the threshold for additional preference. Moreover, such a household would then remain in the reasonable preference band where its additional needs would not be given any effect since priority within that band depends entirely upon the date of original registration. The published scheme would permit a household to qualify for reasonable preference on the basis of social need. If one member of the household also suffers from a medical condition which would, of itself, bring the household into the reasonable preference band but was not so exceptional or of such severity as to bring the household into the additional preference band, the additional medical need could not be given any effect. Similarly, if a household has a number of children with medical conditions which, in each case, would require classification within the reasonable preference band but not within the additional preference band, the needs of the others could not be given any effect. The overall effect of this is intensified by the fact that the reasonable preference band is, under the defendant's scheme, a very wide band so that the failure to recognise the additional qualifying needs, is that much more serious. A large number of needs of widely varying severity are banded together and thereafter priority is determined solely on the basis of waiting time.
.....
35 Next, Mr Bhose submitted that the requirements of the legislation were met by the defendant's scheme because it embodies a system of self-assessment. The defendant's scheme, he says, permits each household qualifying for reasonable preference to take a realistic view of its needs and the likelihood of their being met. A bid for a less attractive property is more likely to be successful. As Mr Bourne explains in his witness statement, since all applicants in the reasonable preference
band are entitled to bid for properties, those who consider themselves to be in real need of moving quickly may bid for the less attractive properties that are advertised. This argument echoes a very similar argument advanced by Lambeth LBC in R (on the Application of A) v Lambeth LBC where great emphasis was placed by Lambeth on the opportunity to make a choice to achieve preference. I am not persuaded by this argument. The amendments to the 1996 Act introduced in 2002 were certainly intended to introduce a measure of choice into the allocation of social housing. However, those amendments left intact the principle of the identification of comparative need, as is apparent from the statutory scheme and the revised Code of Guidance. Whatever may be the virtues of self-assessment, it is no substitute for the principle of the identification of comparative need and does not absolve authorities from their duty to establish schemes which take account of comparative need.
.....
40 Secondly, s.167 (1) requires that the scheme shall include the procedure to be followed in allocating housing accommodation and state that this includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken. This approach is also reflected in the Code of Guidance at para 5.1. Mr Bourne in his witness statement and Mr Bhose in his oral submissions very frankly accepted that the scheme could be clearer in explaining how the Panels operate in cases of composite need. Mr Bhose suggested that the statutory requirement was satisfied by the following statement in the scheme:
'Registration of all cases will be subject to assessment by the Council. This will normally require applicants to provide various documents to support their applications and to confirm their current circumstances.'
To my mind this passage does not begin to meet the statutory requirement. It appears in a section relating to eligibility to apply and contains no explanation as to how need is to be assessed. I am satisfied that the published scheme does not set out the criteria for the award of additional preference when an applicant comes within one or more of the reasonable preference categories.
.....
46 In his oral submissions Mr Bhose contended that the threshold for the reasonable preference band may easily be determined by a simple process of elimination. In his submission, the criteria for the additional preference band are clearly identified by the scheme. Moreover, the no preference band is defined in the scheme as including those applicants who are 'adequately housed or where the Council does not have a duty to provide them with secure accommodation'. On this basis, he maintains, it is possible to identify the criteria for the intermediate band of reasonable preference. However to my mind this does not meet the requirements of the legislation. It does not explain what criteria apply or indicate that they will be applied. Accordingly, I have come to the conclusion that, for this further reason, the defendant's scheme fails to comply with the requirements of s.167 (2)."
It is clear from these extracts that his Lordship again concluded that a cumulative assessment was needed. This decision is significant because the allocation scheme based upon choice of lettings and additional preference had a similar structure to the scheme which is under review before me although I am unable to determine whether it is precisely the same.
Conclusions
"1) Unsatisfactory Accommodation:
Is the household's current accommodation statutorily overcrowded or subject to Environmental Health abatement action?
2) Housing Related Health/Welfare
Does more than one member of the household have reasonable preference to move on medical grounds? If yes score one for each additional member of the household."
Those are the two limbs which might apply in the present case. The policy continues:
"Assessment
Total score from assessment questions 1, 2 and 3 and check question 2.
1 = no Additional Preference.
2/3 = A[dditional] P[reference] will be made one direct offer of a suitable property ..... "
Relief