High Court judge declares part of housing allocation scheme to be unlawful

A High Court judge has declared unlawful a London council’s policy of suspending an unintentionally homeless person’s right to bid for social housing for 12 months.

The case of Alemi, R (on the application of) v Westminster City Council [2015] EWHC 1765 (Admin) involved a judicial review of part of the local authority’s housing allocation scheme.

The claimant’s family had lost their privately rented home in Westminster because the benefit cap meant they could no longer afford their rent.

Westminster Council agreed it had a duty to accommodate them.

But at around the time the claimant was made homeless there was a change in the local authority’s approach to persons owed the main housing duty.

The Localism Act 2011 amended section 193 of the Housing Act 1996 by providing housing authorities a power to discharge their main housing duty to the unintentionally homeless by an offer of a suitable assured shorthold tenancy of at least 12 months in the private rented sector (prs).

On 9 May 2014 Westminster's Cabinet Member for Business, Skills and Housing decided to accept a report of its Strategic Director of Housing, Regeneration and Property.

This report included:

"3.7.2 Until now we have not enforced a private sector offer but have been working with applicants who are willing to go down the prs route…


"3.7.3 Most applicants currently wait 7-10 years for a social housing tenancy and we now intend to start identifying more households for whom the prs would be suitable and start making offers to them to bring our duty to an end…
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3.7.4 To strengthen the message to applicants and to give Housing Options time to assess whether applicants will be able to manage in the psr (sic) and to find them a suitable property it is proposed to stop homeless households being able to bid for social housing for 12 months after the date that we accept a duty. We aim to start this as soon as administratively possible after 1st April.
"

3.7.5 This will not apply to [three exceptions]. For those for whom the prs is not suitable (e.g. very vulnerable households) the one year delay in bidding will not affect the overall waiting time. Some applicants who have extra points for employment and 10 years residence in Westminster can be rehoused very quickly and the 12 month suspension may have a marginal impact on this group.
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3.7.6 Because the households with the fewest needs, especially those coming out of the private sector, are the ones who are most likely to be able to move straight into a private sector tenancy, the long term effect may be that those waiting for a social tenancy are more vulnerable than those who currently hold social tenancies."

Westminster adopted this proposal with effect from 15 June 2014 – a fortnight before its decision letter in respect of the claimant.

The council placed the family in Enfield and applied the policy that stopped them from bidding for social housing in its area for 12 months.

The claimant argued that the scheme unlawfully breached the duty imposed by s. 166A(3) of the Housing Act 1996.

HHJ Blair QC accepted that counsel for Westminister was right in saying that what was legally impermissible by using section 160ZA(7) to disqualify a sub-group of persons might possibly be achievable through a different route in a LHA's scheme.

But he said this overlooked the point that section 166A(3) was about the ‘allocation’ of social housing to statutorily defined groups which must be given reasonable preference.

“The differentiation which is permitted by the legislation (and which the Courts should leave to the wide discretion afforded to a LHA [local housing authority] and the democratic process) is restricted to adjusting the relative priority of sub-groups by reference to features which do nonetheless afford them some opportunity to be allocated social housing within the LHA's current cycle, however remote that possibility might be,” HHJ Blair QC said. [Judge’s emphases here and below]

“Thus, the examples set out in section 166A(5) reflect the legislative intention to recognise features of the circumstances of applicants for whom, as a sub-group, a LHA may justify a differentiation in the priority they are given within a larger group which must be given a reasonable preference in the allocation of social housing (section 166A(3)).”

He added that what those examples in section 166A(5) did not do was to altogether remove them from the potential of being allocated social housing. “In a time where there is a paucity of social housing it may be an entirely theoretical potential, but it is nonetheless a potential.”

Westminster’s first argument therefore failed because, although the claimant and her sub-class undoubtedly did have tangible differences with (and advantages over) those who are not accepted onto the council’s register, “nonetheless for 12 months those differences/advantages do not amount to a reasonable preference in the allocation of social housing”.

The council’s second argument was that even if the claimant's sub-group had no current reasonable preference in its first 12 months on the register, such a scheme was nonetheless permitted under section 166A(3) because case law supported the proposition that the reasonable preference was not to be assessed at a finite 'snapshot' moment in time, but that it was sufficient for the reasonable preference to be measured over a reasonable period of time.

However, the judge said this failed because in the claimant's sub-group the reasonable period of time over which Westminster’s counsel said the reasonable preference could lawfully be assessed was a “totally arbitrary one”.

“It is unrelated to the statutory purpose of allocating social housing and does not pretend to be designed so as to manage relative priorities within the group(s),” HHJ Blair QC said.

Westminster’s third argument was that section 166A(3) looked at a general target duty towards groups of people and did not give individual rights.

But this was rejected by the judge for the same reasons.

“This amended Scheme carves out a whole sub-group which is altogether excluded from the potential of being allocated social housing for 12 months. They have no preference,” HHJ Blair QC said.

“Part VI of the Act does not permit the removal of a whole sub-group from a group which section 166A(3) requires be given reasonable preference in the allocation of social housing, when that sub-group is not defined by reference to differentiating features related to the allocation of housing, but applies a simple time bar to all who otherwise qualify. It is unlawful.”

As a result of the ruling the claimant’s family will be able to bid alongside others seeking council housing in the Westminster area. Other homeless people will also be able to bid from the date their application is accepted by the council.

Jan Luba QC of Garden Court Chambers, who appeared for the claimant, said: “This case has nothing to do with queue jumping. Quite the reverse. It is all about being able to join the queue of those in housing need, instead of being temporarily excluded from it.”

Jayesh Kunwardia, the partner at Hodge Jones & Allen who instructed Luba and Tim Baldwin, said: “This landmark ruling makes it abundantly clear that homeless people have the right to bid for social housing from the time they secure a full housing duty from a local authority rather than being suspended for one year. Westminster’s subtle way of registering the homeless, saying they will have points but denying them the right to bid for 12 months is now deemed unlawful.”