Priority points, minimum thresholds

A High Court judge recently analysed a London borough's use of a minimum threshold of priority points in its bid to manage demand for housing. Christopher Baker and Richard Granby explain the ruling.

Summary

The Administrative Court has held that it was lawful for a local authority, pursuant to provision in their housing allocation scheme under Pt 6 Housing Act 1996, not to allow an applicant registered on the housing register, who fell within one of the categories of people in s166A(3) in respect of whom reasonable preference was to be given, to make bids for properties because the number of priority points she had been awarded under the scheme was below a minimum threshold set by the authority in order to manage the fact that demand greatly exceeded supply.

Background

The claimant in R (Woolfe) v Islington LBC Administrative Court, July 15, 2016 (Holman J) applied to Islington for homelessness assistance, under Pt 7 Housing Act 1996. She was pregnant with her first child and had previously lived with her mother but there were concerns for the safety of the unborn child if the claimant remained accommodated with the mother. Islington arranged temporary accommodation and accepted they owed the claimant a homelessness duty under s193. They also registered the claimant on their housing register pursuant to their housing allocation scheme under Pt 6 and awarded her 110 priority points (100 points for local residence and 10 points for homelessness).

The housing allocation scheme included provision for Islington to set points thresholds, below which registered applicants would not be able to make bids for properties under the choice-based lettings process within the scheme. Islington’s evidence was that the threshold assisted in managing the housing register, because the acute shortage of available accommodation relative to the very large number of applicants was such that in 2014-15 no applicant had been successful with fewer than 129 points for any type of property. The threshold had been set at 120 points; the claimant was accordingly unable to make bids.

In judicial review proceedings, the claimant alleged that the operation of any such threshold was a breach of s166A(3), which provides:

“(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) …”

The claimant also alleged that the threshold was a breach of s11(2) Children Act 2004 which required Islington to

“make arrangements for ensuring that–

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

The housing allocation scheme also included provision for a “New Generation scheme”, under which priority points were awarded to applicants living with their parents and requiring up to two-bedroomed accommodation. Among the criteria for such points in the housing allocation scheme was the following:

“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”.

The claimant contended that she was entitled to points under the New Generation scheme because she had been living with her mother in Islington’s district. On a review, however, it was decided she was not so entitled because the New Generation scheme required her still to be living with her mother, whereas she was currently living in the separate homelessness accommodation.

Decision

The Court held (dismissing the first two grounds of challenge, but allowing the third):

(1) The setting of the points threshold did not offend s166A(3): Islington had a housing allocation scheme, as required by s166A(1), they had permitted the claimant to be registered and they give her priority points for homelessness pursuant to the scheme; the scheme accordingly did make some provision for the homeless and, following earlier case law, the court would not subvert Islington’s decision as to the number of points to be awarded so that s166A(3) had been complied with; the setting of the threshold, however, was a different issue from the question of priority, which was decided by the number of points, and was a reflection of the fact that demand greatly exceeded supply; when setting the threshold, Islington were entitled to take into account the degree of likelihood of bids being successful and it was entirely lawful to manage the bidding process by limiting the volumes of those bidding to applicants with realistic prospects; the level of the threshold was a matter for Islington, not the court.

(2) For similar reasons, there was no breach of s11 Children Act 2004: Islington’s evidence showed that the welfare of the claimant’s child had been discussed, that there was a joint working protocol between the housing and social services departments, that when considering to award welfare points housing would contact social services and that they did so in the present case; the inclusion within the scheme of points for welfare showed that regard had been paid to the welfare of children and provided such points could be awarded there was no inconsistency between complying with s11 and having the threshold.  

(3) The reference within the New Generation scheme to the requisite period of living with the applicant’s parents being “at least three out of the last five years” could only make sense if the period did not need to be continuing at the end of the five years; accordingly, as a matter of interpretation of the scheme, what was necessary and sufficient was that the applicant prove a continuous block of at least three years during the last five years, whether or not the applicant had been so living for the past two years; the review decision would accordingly be quashed and would need to be reconsidered.

Christopher Baker and Richard Granby of Arden Chambers appeared for Islington LBC. Christopher can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Richard can be reached on or This email address is being protected from spambots. You need JavaScript enabled to view it..