Claimant wins High Court dispute over whether council had discretion to backdate registration of housing allocation application

A claimant has won a High Court challenge over the failure of the London Borough of Lambeth to make a decision in relation to her request to backdate the qualifying date of her housing register account.

At issue was whether Lambeth had any discretion under its Housing Allocation Scheme 2013 to backdate the qualifying date.

The claimant argued that Lambeth had a discretion to backdate the qualifying date of her housing register account to 15 September 2017, when she had applied to the council under her now former husband’s name.

On receiving the claimant’s homelessness application after she and her family were evicted from their private rented sector accommodation in October 2022, Lambeth updated her priority banding but gave her a new account and recorded the registration date as 8 February 2023.

The defendant local authority subsequently denied that it had any discretion to backdate the qualifying date to September 2017.

The claimant based her case in the High Court on two alternative footings. The first was predicated on the basis that the council did have a discretion under the Scheme to backdate the registration date and the second was put on the basis that if, contrary to the claimant's primary submission, there was no discretion, then the policy was unlawful.

The claimant’s case set out five grounds of review:

(a) The failure to consider exercising the discretion to backdate the claimant's registration date.

If there was no discretion within the Scheme, then:

(b) The Scheme is unlawful and contrary to the Equality Act 2010.

(c) The Scheme is discriminatory contrary to Article 14 ECHR.

(d) The Scheme is irrational.

(e) The Scheme unlawfully fetters a public body's basic duty not to fetter its discretion.

Jonathan Glasson KC, sitting as a Deputy Judge of the High Court, acknowledged that no explicit reference was made in the Scheme to a discretion to backdate the registration date. Nevertheless, looking at the Scheme as a whole, and applying the approach set out by the Court of Appeal in R (Flores) v Southwark LBC [2020] EWCA Civ 1697; [2021] H.L.R. 16, he ruled that two of the three passages relied upon by the claimant demonstrated that there was in fact a discretion.

The first of these passages was that "[the Council may at its discretion award additional priority to homeless persons".

Judge Glasson said that this section should be read in the context of how the "choice based lettings system" operates whereby “[p]riority between applicants in the same Band will be based on their Level if applicable, and then registration date".

A mechanism by which "additional priority" may be given is to backdate the registration date, the judge said.

That there was a discretion in relation to the registration date was also clear from the reference to joint tenancies in the Scheme that had been relied upon by the claimant, Judge Glasson said.

That passage read that "[a]dding to or removing a joint applicant from your housing application will require closing the current application and submitting a new one and may therefore result in loss of priority based on registration date". [judge's emphasis]

The judge said this passage was significant in two respects. “First, it makes clear that the date of registration adds priority to an applicant for housing which reinforces the interpretation I have given to how the discretion to "award additional priority to homeless persons" may be exercised. Secondly, it makes plain that the Defendant has a discretion as to whether submitting a new application results in the "loss of priority based on registration date". The Scheme says that such action "may" (rather than "shall") result in "loss of priority based on registration date".”

Judge Glasson rejected a third passage relied upon by the claimant but added that this did not undermine in any way his interpretation of what the Scheme meant when it referred to a discretion to give “additional priority” to an applicant.

The judge suggesed that the interpretation which he had given to the Scheme was one which accorded with "common sense and [is] a practical approach to the interpretation of the scheme, and indeed an interpretation which allows a sensible degree of flexibility when it comes to dealing with individual cases" (Flores, [40]).

It was also consistent with the evidence that the claimant had served which demonstrated that Lambeth had, as a matter of fact, exercised a discretion to backdate the registration date in a number of different cases. The interpretation was also consistent with the council’s Guidelines for Officers: Exercising Discretion under the Housing Allocation Scheme 2013 and the overarching approach set out to the exercise of discretion in that document.

Finally, the Deputy High Court judge rejected Lambeth's assertion – made, he said, without any supporting evidence – that the claimant's evidence only demonstrated that there was a discretion on the local authority to backdate the registration date in circumstances where there had been injustice or unfairness.

Accordingly, the claim succeeded on the first ground of challenge, meaning the court did not have to rule upon the alternate bases upon which the claim had been argued.

The Deputy High Court judge gave the following wording as declaratory relief: "The Defendant does have a discretion to backdate the registration date of an applicant's application under the Housing Allocation Scheme for the reasons given in the judgment at paragraphs 67-72. The Defendant acted unlawfully by failing to consider exercising their discretion in response to the Claimant's request."

He also ordered that Lambeth should consider the claimant's request within 28 days, which the council had suggested was unnecessary as it said it would now consider whether to exercise its discretion in this case, "and that goes without saying". However, the judge cited the “unfortunate history in this case” as why such an order was appropriate.

Harry Rodd