|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ahmad, R (on the application of) v London Borough of Newham  EWCA Civ 140 (29 February 2008)
Cite as:  EWCA Civ 140,  ACD 193,  BLGR 628
[New search] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Nicholas Blake QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE RICHARDS
| The Queen (on the application of Omar Ahmad)
|- and -
|The Mayor and Burgesses of the
London Borough of Newham
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)
Robert Latham (instructed by Edwards Duthie Solicitors) for the Respondent
Hearing date : 28 November 2007
Crown Copyright ©
Lord Justice Richards :
The statutory provisions
"(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.
(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.
(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(2) 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).
(2A) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2); and the factors which the scheme may allow to be taken into account include –
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a person and the authority's district.
(2E) Subject to subsection (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 subsection (2)).
(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."
The relevant case-law
"There can be no doubt that, subject to the residual discretion, the method of calculating allocations points under the present scheme is incapable of producing a fair assessment of applicants' respective housing needs. That is because it makes only very limited allowance for multiple categories of need … and makes no allowance at all for the number of persons within the applicant's household who are affected by a particular category of need …. There is no possibility of a 'composite' assessment, to use the applicants' expression.
Nor do I think that the residual discretion can be viewed as a rational way of redressing the balance ….
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 ….
I stress that it is for the authority to decide on the particular categories of need to be included in an allocations scheme of this kind, and to decide into which categories individuals fall. The criticisms made in this judgment relate to a broad question of approach and are not intended to impose any particular template upon the authority …."
"That seems to me to be the philosophy which underlies the provisions of section 167. The various categories of need identified in section 167, and in the 1997 Regulations [which added a category to s.167(2) as originally enacted], 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. This was recognised by Richards J in R v Islington LBC, ex p. Reilly and Mannix …. In so far, therefore, as the respondent's scheme precludes consideration of any of the other categories to which reasonable preference and additional preference ought to be give under section 167(2) it is unlawful, in that it excludes from consideration matters which Parliament has required the respondent to take into consideration. The extent to which priority should be given within the homeless category to those who may fall within the other categories is a matter for the respondent. But those who have needs which are capable of falling into any of the other categories are entitled to have those needs taken into consideration."
"15. Section 167 does not require more than that a reasonable preference be given. Each authority's scheme will inevitably be linked to its particular situation and will reflect its particular problems. The Code of Guidance recognises that other factors than those in section 167(2) can be taken into account and given weight provided that they do not dominate the scheme at the expense of those in s.167(2). Equally, the authority will decide what weight to attach to each of the factors ….
16. The scheme must be framed so as to secure [original emphasis] that reasonable preference is given. The Council's scheme is based on date order and includes (potentially in each group but in reality largely in Group D) those who are not entitled to any preference. Mr Lowe QC [counsel for the authority] attempted to suggest that 4 per cent was de minimis. In terms of numbers, that suggestion is insupportable, but the exact percentage is irrelevant. Unless it is clear that no applicants who are not entitled to preference are able to compete on equal terms with those who are, the scheme cannot secure that the necessary head start is given ….
17. The scheme is not directly linked to the various categories in section 167(2). That is not in itself a reason to regard it as unlawful provided that it does in fact secure the necessary preference for those categories …. But the fact remains that the scheme cannot secure that the necessary preferences are accorded because of the presence of those who are not within s.167(2) in the Group and who have the same opportunity to achieve preference."
"18. … This can be encapsulated in the requirement that the scheme in question has a mechanism for identifying those with the greatest need and ensuring that so far as possible and subject to reasonable countervailing factors (for example, past failure to pay rent et cetera) they are given priority. No doubt normally those in greater need will be those who qualify under more than category, but it will not necessarily be the case that X who is within more categories than Y automatically must be regarded as being in greater need than Y. All will depend on the circumstances, one of which may include the length of time Y has spent waiting.
19. In the Islington case, Richards J decided that the scheme could not achieve what it should in this respect and so failed because it was irrational. That in my view is the correct approach. So we have to decide whether the method which Lambeth has devised in its Allocations Policy to identify and so give priority to those in greatest need can reasonably be said to achieve its object. 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.
20. As it seems to me, the question is whether self-assessment can be said to be a rational means of solving the problem. Lambeth asserts that it works and that an individual's assessment of his or her own needs is as reliable as that made by a third person. The difficulty with that submission is that the individual is inevitably concerned only with his or her own situation and may not on any reasonably objective view have greater need. While I have recognised the inevitable [im]perfections of any scheme, this seems to me to be altogether too haphazard ….
21. Accordingly in my view the system which Lambeth has devised and the manner in which preferences are to be accorded by means of self-assessment or, as Lambeth calls it, choice do not meet the statutory requirements …."
"37. I agree with Collins J … that the Council's allocation scheme is unlawful by reason of its failure to give preference to 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.
38. I also agree that the provision of choice does not render the allocation scheme lawful. Conferring a choice on applicants is of course admirable and accords with government policy …. However, the sustained submissions of Mr Lowe have not persuaded me that giving the choice of accepting something less than the applicant may be allowed, if available, discharges the specific duty in section 167(2) to give a preference. I fail to see how permitting an applicant to assess his need so highly that he accepts inferior accommodation amounts to conferring a preference on him. The two concepts are different and the right to choose does not amount to a preference within the meaning of the section. This conclusion is not dependent on the fact that the choice is available to all applicants, and not only to those entitled to the statutory preference, but is consistent with it.
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 …."
"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 a reasonable preference can, on the basis of its cumulative need, qualify for additional preference …. A large number of needs of widely varying severity are banded together and thereafter priority is determined solely on the basis of waiting time."
"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 s.167(2). The duty to give a reasonable preference merely requires the giving of what Judge LJ referred to in the corresponding previous legislation … as a 'reasonable head start': see R v Wolverhampton MBC, ex part Watters (1997) 29 HLR 931, 938. 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 s.167(2) and for that person never to be allocated Part 6 housing. Such a person is entitled to no more than a reasonable preference.
26. Section 167(2A) expressly permits the local housing authority to determine priorities as between groups within s.167(2). The fact that homeless persons are accorded fewer points than other persons within s.167(2) cannot be a ground for challenge to an allocation scheme.
28. As to whether the preference is 'reasonable', it seems to me that this is a matter for the discretion of the council …."
"It is clear, therefore that a scheme may give reasonable preference to applicants who do not fall within s.167(2) provided that such non-statutory preferences do not dominate the scheme at the expense of the statutory preference categories."
Distinguishing what was said in the Lambeth case as to the position where the 4 per cent of applicants who fell outside s.167(2) were accorded preference in exactly the same way as the 96 per cent who fell within the subsection, Dyson LJ said that in the case before him homeless applicants were not competing on equal terms with applicants who fell outside the subsection: the former were entitled on the grounds of their homelessness to their own special award of points which the latter did not receive (para 41).
The statutory guidance and related materials
"5.2 The requirement under s.167(1A) of the 1996 Act for a statement to be contained in the scheme as to the housing authority's policy on offering a choice of accommodation, or giving the applicant an opportunity to express preferences in relation to accommodation, means that the housing authority must address the matter and take a policy decision on it.
5.3 The Secretary of State believes that allocation policies for social housing should provide choice for applicants wherever possible, while continuing to meet housing need ….
5.4 The allocation scheme may contain provision under s.167(2E) for the allocation of particular accommodation to a person who makes a specific application for that accommodation. This is intended to facilitate choice by providing for the adoption of 'advertising schemes' whereby applicants can apply for particular properties, which have been advertised as vacant by the housing authority.
5.5 It is for housing authorities and their partner RSLs to decide in the light of local circumstances, and drawing on the experience of the choice based lettings pilot scheme, the ways in which they can amend or develop existing arrangements so as to offer more choice to applicants.
5.6 Housing authorities which do not offer a choice of accommodation, should consider giving the applicant an opportunity to express preferences in relation to accommodation …."
"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 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 ….
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."
"5.10 The Secretary of State is of the opinion that there is sufficient flexibility within the statutory framework to enable housing authorities to offer applicants a choice of accommodation while continuing to give reasonable preference to those with the most urgent housing need.
5.11 When considering how to reconcile choice and housing need, housing authorities should consider adopting a simplified system of applicant prioritisation in place of a complex points-based approach. An appropriate approach might include systems that:
(a) 'band' applicants into a number of groups reflecting different levels of housing need, with prioritisation of applicants within these groups being determined by waiting time, and/or
(b) give people in the most urgent housing need priority over other applicants (often by using a time-limited 'priority card')."
"5.23 Section 167(2A) allows allocation schemes to make provision for determining priorities in relation to applicants who fall within the reasonable preference and any additional preference categories. The factors which the scheme may allow to be taken into account include … [the Code then refers to the instances set out in s.167(2A) itself].
5.24 There should be arrangements for determining allocation priorities between two households with similar levels of need. It would be legitimate to employ some indicator that reflects the time spent waiting at a particular level of need …."
"5.25 While housing authorities will need to ensure that, overall, reasonable preference for allocations is given to applicants in the relevant categories in s.167(2), these should not be regarded as exclusive. A scheme should be flexible enough to incorporate other considerations. For example, housing authorities may wish to give sympathetic consideration to the housing needs of extended families. However, housing authorities must not allow their own secondary criteria to dominate schemes at the expense of the statutory reasonable preference categories. The latter must be reflected on the face of schemes and be evident when schemes are evaluated over a longer period."
"9.18 We do not believe points-based assessment systems are an ideal way of ensuring that social housing lettings meet need in a sustainable way. Assessments take little account of people's own 'felt needs'. For this reason, some authorities are now moving away from points-based systems to more broad-brush 'banding' systems. The needs of everyone in each band are considered to be of broadly similar urgency. We believe there is scope for extending this idea. The banding could be as simple as:
- people with an urgent need for social housing;
- those in non-urgent need of social housing; and
- those with no particular need for it.
9.20 In order to decide between competing claims within these broader bands, there needs to be some determining criterion. In the case of first-time applications, this could be the time that the person has been waiting in that particular band. For existing tenants, it could be the time spent at their current address.
9.21 The advantage of this approach is that it would enable people to balance their own 'felt' need, as measured by the time they felt able to wait, against the availability of the properties they might be able to secure. In effect, waiting time would become the 'currency' that those in the social sector could use to optimise their own decisions about where to live, taking into account all their needs and aspirations.
9.22 Since those in the highest needs band would have priority over those with lesser needs, there would be no question of the poorest or most vulnerable people having the worse choices. Of those with broadly similar needs, people who had put up with their situation the longest would have the best chance of securing a home which met their requirements.
9.23 We recognise that in areas of high demand the number of households within the urgent category will be significant. Authorities in such areas may decide to introduce additional bands to differentiate between demand priorities. However, the principle of giving priority according to the time spent in housing need remains valid."
Newham's allocation scheme
The claimant's challenge to the allocation scheme
The first issue: cumulative need
i) The Islington case related to transfers which at that time were wholly excluded from Part 6 of the 1996 Act. The decision may be supportable on its particular facts but does not assist in relation to the operation of the complex statutory scheme now in place under Part 6.
ii) The Westminster case did concern housing allocation under Part 6 but was prior to the amendments made by the 2002 Act, in particular the introduction of subs.(2A). Moreover the authority's scheme was held to be unlawful because, in relation to homeless persons, it merely provided for a certain quota of properties to be allocated in date order of application and therefore failed to have regard to the relevant consideration of needs under other categories. Latham J expressly recognised, however, that the extent of any priority remained a matter for the authority's discretion. In the present case, Newham's scheme has clearly considered how multiple needs should be taken into account, so that the failing identified in the Westminster case is not present.
iii) The Lambeth case also predated the coming into force of the amendments made by the 2002 Act. It does not appear from the judgments that the legal principles were in dispute. The scheme in that case was in any event very different from Newham's, relying heavily on the use of self-assessment by applicants, and Collins J concluded that it was "too haphazard". That criticism cannot be advanced in the present case: Newham's scheme is deliberate, making clear provision for identifying, and giving preference in respect of, multiple needs.
iv) The Waltham Forest case post-dated the amendments made by the 2002 Act, but the judgment made no reference to the new subs.(2A) and is accordingly not a reliable guide to the subtlety of the statutory scheme. The scheme was different from Newham's, especially because there was no multiple needs group. The judge found the scheme unlawful because there was "no mechanism" whereby a household could qualify for additional preference on the basis of its cumulative need. The decision therefore took the point no further than the Lambeth case and is in any event distinguishable from the present case.
Second issue: reconciling choice and need
Third issue: sufficiency of criteria
"68. … [I]t seems to me, in the light of the statute, the Code and the previous learning, that no precise criteria of medical or social need needs to be fully spelt out in the policy. These matters can be addressed carefully and thoroughly by the relevant officers performing the function under the policy and giving a sufficiently reasoned decision in the end. By these means the claimants will know why they failed to be afforded priority under the schemes that reflect the duty in the statute. Thorough and complete as the policies for assessments have to be, the duty does not, in my judgment, require every single factor relied upon to be spelt out in advance. This remains a field of judgment rather than science, and a realistic, cumulative assessment could be undermined by over-prescription of circumstances in the policy. Clearly the claimant must know who is to make the judgment and how. That is likely to be apparent from the forms used to make the assessment and the information the claimant puts into the process by following them."
Discussion and conclusion
Lord Justice May :
Sir Anthony Clarke MR :