London borough defeats High Court challenge to designation under housing allocation scheme

Hugo Keith KC, sitting as a deputy High Court judge, found the claimant had not been treated unlawfully when Lewisham revised the policy.

Her application concerned Lewisham’s policy for allocating housing to people in settled but overcrowded accommodation.

The council introduced a new Housing Allocation Policy in 2022 replacing one from in 2017 under which applications had been placed into three bands depending on their circumstances.

The revised 2022 policy introduced a fourth band for the least severe overcrowding - those overcrowded by one bed and not statutorily overcrowded, or households who were statutorily overcrowded but not in need of additional bedrooms.

All applicants were re-classified and the claimant was placed in the new Band 4 but had the right to apply for Band 3 if she required one additional room and thought that she was statutorily overcrowded.

She was not though told that, if successful, her Band start date would be changed to when she made such an application and not backdated to the point of her original application under the old policy, which she argued disadvantaged her.

The claimant challenged her designation under the 2022 scheme as she lives in a one-bedroom flat and she and her daughter have to share a bed.

She said the new starting date for Band 3 status meant she will have to wait at least another 3.5 years to bid successfully for a home, unless her priority is backdated to when she first entered Band 3 in 2021.

It was argued for the claimant that she was placed in Band 3 in 2021 and her circumstances have not changed, meaning she was entitled to Band 3 under both the old and new rules and so should have the original start date.

She also argued the scheme was irrational as it gave her a different Band status despite unchanged circumstances.

Lewisham said it had introduced a new eligibility criteria under which all applicants who had previously been recorded as overcrowded by one bedroom were placed in Band 4 but could apply for Band 3, and GR was therefore in a better position because she was moved up to Band 3 when she applied, even though her Band date has been fixed as from 31 October 2022, and not 10 May 2021.

Mr Keith said nothing on the face of the 2022 scheme required or permitted GR to be allowed to retain her old Band start date on being elevated to Band 3.

He said: “The 2022 scheme was not a continuation of the old, in so far as those who were overcrowded by one bedroom were concerned.

“Unless they were able to show that they were also statutorily overcrowded…they were automatically placed in a new Band 4. They were also required to submit a change of circumstances form demonstrating that they were also statutorily overcrowded if they wished to be moved up to Band 3.

“These were real and substantive changes…there was not simply ‘an amendment to the re-housing reasons’ relating to the existing 2017 bands.”

The judge said Lewisham was entitled to introduce a system by which all pre-existing one-bedroom overcrowded applicants were automatically designated as Band 4 and did not, in not giving the claimant her old Band date, fail to apply its own policy under the 2022 scheme.

He said it had been regrettable that neither the 2022 scheme, the accompanying guidance, nor a letter to GR made clear that a move up to Band 3 would mean losing her old start date, but “this failure of communication does not vitiate the legality of the 2022 scheme”.

The submission for GR on irrationality was unsustainable because Lewisham was entitled to set the parameters of the 2022 scheme as it did, and there was nothing irrational in the way that it was applied to the claimant.

Mark Smulian