High Court judge rules Westminster housing allocation scheme unlawful
A High Court judge has ruled that Westminster City Council’s Housing Allocation scheme of March 2020 was unlawful on account of limiting places on the local authority’s housing register to those to whom the “Main Housing Duty” was owed.
In Khayyat & Anor v Westminster City Council [2023] EWHC 30 (Admin) Mr Justice Eyre noted that the council’s scheme “failed to secure a reasonable preference” to homeless persons.
Two claimants had sought judicial review of the lawfulness of the defendant council's Housing Allocation Scheme of March 2020 ("the Scheme").
Westminster initially declined to place either claimant on its housing register ("the Register").
The judge noted that the defendant accepted that each claimant was homeless within the meaning of the Housing Act 1996. However, the city council did not accept that it owed either claimant the duty pursuant to section 193(2) of the Act to secure that accommodation was available for occupation by the claimant ("the Main Housing Duty").
The effect of the Scheme was that only those to whom the Main Housing Duty was owed were to be placed on the Register and it was pursuant to that policy that the defendant refused the claimants' applications, the judge stated.
The Main Housing Duty is owed where a local authority is satisfied that a homeless application is homeless, eligible for assistance, in priority need of accommodation, and not homeless intentionally.
Mr Justice Eyre outlined the background of the individual cases. The First Claimant sought to be placed on Westminster’s Register in July 2020. That application was refused on 19th February 2021 on the ground that she was not owed the ‘Main Housing Duty’.
However, on 12th May 2021 the defendant accepted that she was owed the Main Housing Duty, the judge stated.
On 24th June 2021 the First Claimant was placed on the Register with effect from 11th May 2021. On 6th September 2021 the First Claimant commenced proceedings seeking a declaration that her registration should be effective from either January 2020 (when she was first determined to be homeless) or July 2020 (when she first applied to be placed on the Register).
However, on 21st April 2022 the First Claimant was granted accommodation by way of a secure tenancy rendering the question of the date when she should have been placed on the Register academic, the judge concluded.
The Second Claimant was accepted as being homeless from 2018 onwards. However, it was not until 29th June 2022 that the council accepted that the Second Claimant was not intentionally homeless.
On 30th June 2022 Westminster accepted that it owed the Second Claimant the Main Housing Duty and placed her on the Register. She was then given temporary accommodation “where she has remained and which she will be entitled to occupy until she obtains a secure tenancy”, the judge noted.
The Second Claimant contended that she should have been placed on the Register with effect from either 5th August 2018 (which was when the defendant first accepted that she was homeless) or 16th November 2021 (the most recent date when the defendant accepted that she was homeless).
Mr Justice Eyre considered the relevant legislative framework, noting that the starting point is section 159(1) of the Act, “which requires a local housing authority to comply with the following provisions of Part VI of the Act in allocating housing accommodation”:
Section 169(1) requires a local housing authority to have regard in the exercise of its functions under Part VI to guidance issued by the Secretary of State. The relevant guidance is contained in the "Allocation of accommodation: guidance for local housing authorities in England" first issued in June 2012 and updated in March 2022. The judge noted that the following paragraphs are “relevant for current purposes”:
"3.27 Housing authorities should avoid setting criteria which disqualify groups of people whose members are likely to be accorded reasonable preference for social housing, for example on medical or welfare grounds. However, authorities may wish to adopt criteria which would disqualify individuals who satisfy the reasonable preference requirements. This could be the case, for example, if applicants are disqualified on a ground of antisocial behaviour.
…
4.4 In framing their allocation scheme to determine allocation priorities, housing authorities must ensure that reasonable preference is given to the following categories of people (s. 166A(3):
(a) people are who homeless within the meaning of Part 7 of the 1996 Act (including those who are intentionally homeless and those not in priority need)
(b) people who are owed a duty by any housing authority under section 190(2), 193(2) or 195(2) of the 1996 Act (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any housing authority under s.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 housing authority, where failure to meet that need would cause hardship (to themselves or others).
Section 193 provides in the following terms for the Main Housing Duty which is owed to those who are eligible; who have a priority need; and who are not homeless intentionally:
"(1) This section applies where –
(a) the local housing authority –
(i) are satisfied that an applicant is homeless and eligible for assistance, and
(ii) are not satisfied that the applicant became homeless intentionally.
(b) the authority are also satisfied that the applicant has a priority need, and
(c) the authority's duty to the applicant under section 189B(2) has come to an end.
…
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
Zia Nabi, instructed by Osbornes Law for the Claimants, argued that Westminster’s allocation scheme failed to provide reasonable preference to homeless persons who fall within section 166A (3)(a) of the Act, and all applicants who are owed accommodation duties as set out in section 166A (3)(b) of the Act other than those owed the main housing duty under section 193(2) of the Act.
Considering the scheme and its operation, Mr Justice Eyre noted that as the Scheme is operated it “excludes from admission to the Register those homeless persons to whom the Main Housing Duty is not owed”.
He continued: “That exclusion is subject to a discretion vested in the Defendant's Director of Housing to admit to the Register persons who would otherwise be excluded. It is not, however, suggested that this discretionary power saves the Scheme if it is otherwise unlawful.
“A policy which operates to exclude persons in respect of whom the Defendant has a duty to secure that a reasonable preference is given could not be rendered lawful by the existence of a discretion which could operate to remove some of such persons from the ambit of the exclusion”.
Data produced by the council showed that only 30% of the total number of applicants who were accepted to be homeless were found to be owed the main housing duty, and thus placed on the housing register.
Fractionally over a further 30% were persons whose homelessness was relieved during the currency of the Relief Duty. That left just under 40% of those whom the defendant accepted as being homeless: they were persons whose homelessness was not relieved during the currency of the Relief Duty but who were not placed on the Register.
The judge noted that if those whose homelessness was relieved during the Relief Duty period were excluded from consideration the effect was that 43¼% of those remaining were placed on the Register while 56¾% were not.
Ian Peacock, on behalf of the defendant council, submitted that whether one had characterised those placed on the Register as 30% of those who were found to be homeless or as 43¼% of those whose homelessness remained unrelieved after expiry of the Relief Duty period that was a sufficiently large proportion of those for whom the Defendant was to secure a reasonable preference that the Scheme could not properly be said to be "fundamentally at odds with the statutory requirements" (The judge noted this as a point of significance, revisited in his later conclusions).
Mr Peacock submitted figures illustrating that the need for social housing in its area “substantially exceeds the available supply” and that those on the Register typically have a long wait for accommodation.
The defendant said that the effect of confining places on the Register to those to whom the Main Housing Duty was owed (who are persons with a priority need) was to “ensure that preference is given to those with the greatest need”.
The judge noted that it was not suggested on behalf of the claimants that there was any other motivation for the Scheme and he accepted that this was the reason why the defendant adopted the Scheme.
The judge noted that In R (Ward) v Hillingdon LBC [2019] EWCA Civ 692, [2019] HLR 30 Lewison LJ said, at [6], "All eligible persons included in the `reasonable preference' groups must be treated as qualifying for inclusion in the allocation policy". He then explained the potentially limited consequences of such inclusion saying:
"...but s.166A(3) does not allocate priorities as between the preference groups listed in that subsection. That is dealt with by s.166A(5), which enabled the housing authority itself to determine priorities. So there is no general impediment to a housing authority placing some preference groups in different bands within the scheme: R. (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438; [2015] PTSR 822 at [26]-[27] and [50]. Equally, compliance with s.166A(5) does not guarantee success in being allocated housing; because in many if not most districts demand for accommodation exceeds supply: R. (Lin) v Barnet LBC [2007] EWCA Civ 132; [2007] H.L.R. 30".
Later, Mr Justice Eyre said that “The test of what exclusion is permissible and what impermissible is now to be found in Jakimaviciute. In that case the local housing authority adopted a policy which excluded from its housing allocation scheme those who had been placed in long-term suitable temporary accommodation. That approach was found to be unlawful.
“The court first concluded that the council's power to set qualification criteria under section 160ZA was subject to the duty to secure reasonable preference to those within the scope of section 166A and then held that the approach which had been adopted failed to secure such reasonable preference”.
The judge noted that the policy under challenge in Jakimaviciute did not operate by reference to factors of general application and was struck down. Adding: “The Defendant's argument in this case raises the question of the true basis on which it was struck down and more important the true location of the dividing line between lawful and unlawful policies”.
Mr Peacock, on behalf of the Defendant accepted that the Scheme “did not operate by way of factors of general application”. However, he contended that “the true division between lawful and unlawful policies is not between policies based on factors of general application and all others with the former being lawful and the latter necessarily unlawful”.
It was his submission that a policy which is not based on factors of general application can be lawful provided it does not operate to “thwart the statutory scheme”, the judge said.
Mr Peacock pointed to the proportion of those who were homeless who were accepted on to the Register. He said that analysis showed that the Scheme operated to “secure a reasonable preference for a large proportion of those for whom the Act required such a preference to be secured” and so could not be said to be thwarting the purpose of the Act.
For the claimants Mr Nabi said that the test of lawfulness was “whether a policy purports to redefine the statutory scheme by excluding those to whom the Act requires a reasonable preference to be given other than by way of factors of general application”.
He added that the Scheme clearly operated as an “attempted redefinition of the statutory scheme”, adding that the Scheme excludes all of those to whom the Main Housing Duty is not owed.
Therefore, Mr Nabi contended: “even if a policy which did not operate solely by reference to factors of general application could be lawful depending on the analysis of its effect this was not such a policy. That was because, even if Mr Peacock was correct as to the applicable test, the effect of the Scheme was to thwart the intention of the Act”.
After applying relevant case law, the judge returned to the question of whether there could be, (as Mr Peacock said was the law), “a policy which does not disqualify by reference to factors of general application but which is nonetheless lawful because it does not thwart the statutory scheme”.
Mr Justice Eyre concluded that the council’s allocation scheme was unlawful, noting that it “operates to exclude persons from receipt of a reasonable preference by reference to factors other than factors of general application”.
The judge noted that although it was possible to exclude people to whom reasonable preference was owed from the housing register by reference to factors of general application (for instance, people who have rent arrears), it was not possible to exclude people simply because they were homeless but not owed the main housing duty.
The judge found that the scheme operated in such a way as to “thwart the aim of the legislation”. In effect, it amounted to a redefinition of the statutory class of those owed reasonable preference.
The judge noted that as Mr Nabi, acting on behalf of the claimants said: “the Scheme clearly operates as a redefinition of the statutory scheme because it strikes through parts of section 166A(3) with the effect that no homeless person other than one with a priority need (and who is thereby the subject of the Main Housing Duty) is to be given a reasonable preference by being placed on the Register”.
Finally, the judge stated that Westminster’s position also fell down on the figures. Mr Justice Eyre said: “Mr Peacock said that the fact that 30% of the homeless (or 43¼% of those whose homelessness was not relieved during the Relief Duty period) ended up on the Register showed that the statutory purpose was not being thwarted and that a reasonable preference was being given to a significant proportion of those in the reasonable preference categories.
“I draw a rather different conclusion from these figures. They show that even on the most favourable view for the Defendant only a minority of those in the reasonable preference categories were being given a reasonable preference. As Mr Nabi said 100% of those homeless who were not in priority need were excluded.
“Thus even if regard is to be had to the effect of the Scheme it clearly operated contrary to the purpose of the Act”.
The judge stated that the claimants were to be granted declarations to the effect that the Scheme was unlawful by reason of limiting places on the Register to those to whom the Main Housing Duty was owed and thereby “failed to secure a reasonable preference for those to whom section 166A(3) required a reasonable preference to be given”.
Lottie Winson
