Case No: CO/3801/99
BAILII Citation Number: [1999] EWHC 835 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 14th December 1999

B e f o r e :

THE HON MR JUSTICE LATHAM
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	R		
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	WESTMINSTER CITY COUNCIL
ex parte AL-KHORSAN		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
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Mr Robert Latham (for the Applicant)
Mr Clive H Jones (for the Respondent)

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Judgment

Mr Justice Latham:
In this application the applicant challenges the lawfulness of the respondent’s allocation scheme for social housing which was adopted in March 1999, and is intended to govern allocation until 2002.  

The applicant is a refugee from Iraq who has been granted indefinite leave to remain in this country and whose immediate family consists of his wife and their three children.  He also helps to care for his mother.  As far as the applicant is concerned, he and his family have been accepted by the respondent as persons to whom it owed duties under part VII of the Housing Act 1996 on the grounds that they were homeless.  They have been provided with temporary accommodation.  When these proceedings were first brought, their accommodation consisted of bed and breakfast accommodation in Hounslow.  Since then, the respondent has re-housed the applicant and his family within the city of Westminster in accommodation which is subject to a shorthold tenancy.  The respondent has placed him and his family on the list of those waiting to be allocated more secure accommodation.  His complaint is that the respondent’s allocation scheme does not properly take into account matters which the respondent is required by statute to take into account and which, if they were taken into account, would, or should, place him higher up that list.  He asserts that there are particular medical and welfare considerations which apply to his family which by virtue of the scheme have not been taken into consideration by the respondent but should have been.

Prior to 1996, housing authorities had a general discretion in relation to the allocation of housing, subject to general administrative law principles, and a requirement pursuant to the Housing Act 1985 that reasonable preference be given to persons occupying insanitary or overcrowded houses, persons having large families, persons living under unsatisfactory housing conditions, and persons found to be homeless.  The Housing Act 1996 (“the Act”) introduced a more structured system.  In its original form, it was clearly intended to ensure that everyone, including those who had been homeless, should be treated in the same way as far as allocation of housing was concerned.  By Section 162(1) of the Act, every housing authority was required to establish and maintain a register of qualifying persons.  Allocation of housing of such persons was to be determined in accordance with the provisions of Section 167 of the Act.  This provides as follows:
"(1)  Every local housing authority shall have a scheme (their “allocation scheme”) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.

For this purpose “procedure” includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken.

(2)  As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to:

(a)  people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions,

(b)  people occupying housing accommodation which is temporary or occupied on insecure terms,

(c)  families with dependent children,

(d)  households consisting of or including someone who is expecting a child,

(e)  households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and

(f)  households whose social or economic circumstances are such that they have difficulty in securing settled accommodation.

The scheme shall also be framed so as to secure that additional preference is given to households within paragraph (e) [consisting of someone with a particular need for settled accommodation on medical or welfare grounds] who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future.

(3)  The Secretary of State may by regulations:

(a)  specify further descriptions of people to whom preference is to be  given as mentioned in subsection (2), or

(b)  amend or repeal any part of subsection (2). ......

(6)  Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.....

(8)  A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme."

With the change of government came a change of policy.  The Allocation of Housing (Reasonable and Additional Preference) Regulations 1997 made pursuant to Section 167(3) of the Act, added to the category of those to whom reasonable preference is to be given, those to whom the housing authority has accepted obligations under Part VII of the Act, which sets out the duties of a housing authority to the homeless.	  By the same regulation, the words that I have enclosed in square brackets in Section 167(2) were deleted.

Prior to March 1999, the respondent, in order to comply with the requirements of Section 167 operated a points scheme, allotting a variable number of points to various categories of those on the list, a common feature of such schemes.  In the housing officer’s report to the Housing Committee in March 1999, it was recorded that there were over 2,000 households in temporary accommodation to whom the respondent owed duties under Part VII of the Act.  In an appendix to the report, it was noted that the total number of housing units which were likely to be available in 1999/2000 for all those on the register was 1,486.  The conclusion of the report was that the points system had failed to produce a satisfactory solution in relation to the homeless, for whom temporary accommodation was proving extremely expensive.  The proposal, accepted by the committee, was that the available housing resource should simply be divided amongst various categories of those on the list.  Of the 1,486 housing units expected to be available for 1999 to 2000, 756 were to be allocated to the homeless.  The position of any person or family within that list was to be determined by the date upon which the respondent accepted responsibility for them under Part VII of the Act.  

The point taken by Mr Latham on behalf of the applicant can be simply stated.  As this scheme pays no regard, within the category of those who are homeless, to any of the specific matters set out in section 167(2)(a) to (f) how can this scheme be one which complies with the statutory requirements?  In answer, Mr Jones, on behalf of the respondent asserts that there is nothing wrong in principle in applying what might be described as a quota system.  Indeed this may well be a lawful and rational way of giving preference to, and ordering priorities between the various categories.  

I have no difficulty in accepting that a quota system can form part of a lawful scheme.  This was recognised by Richards J in  R v Islington LBC ex p Reilly and Mannix 31 HLR 651 at page 667.  It is also recognised as one of the tools which might be used by housing authorities in the Code of Guidance on Parts VI and VII of the Housing Act 1996 published by the Department of the Environment and the Department of Health at paragraph 5.22.

It follows that the provision of a quota for the homeless, undoubtedly provides lawful preference for that category, so as to comply with the requirement added by the 1997 regulation.  Within that category, it does not however recognise any of the other categories to which reasonable preference is required to be given, nor does it provide for additional preference for those who fall within Section 167(2)(e) who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future.

Mr Jones submits that the priority given to the homeless category is so substantial as, in effect, to subsume the other categories.  In other words, in so far as a homeless person could also claim to fall into any of the other categories, he or she is in any event given priority by virtue of being homeless.  It is submitted, therefore, that there is no need for the respondent to engage in invidious judgments as between different members of the homeless category relating to their other particular needs.

In my judgment, the respondent is seeking to avoid doing precisely what the Act requires it to do.  Paragraph 2.3 of the Code of Guidance to which I have already referred states:
"A local authority secure tenancy or an assured periodic tenancy with a registered social landlord is, in many cases, a guarantee of social housing for life.  It is therefore important that authorities should take a long term view of applicants’ circumstances, to ensure that such housing, and nominations to registered social landlords, go to those households with the greatest underlying needs."

That seems to me to be the philosophy which underlies the provisions of Section 167.	The various categories of need identified in Section 167, and in the 1997 regulation, are not to be treated, it seems to me, as separate watertight compartments. They identify needs which are capable of being cumulative. And it is only in that way that a proper judgment can be made of the respective needs of persons on the list.   This was recognised by Richards J in R v Islington LBC ex p Reilly and Mannix (supra) at page 666.  In so far, therefore, as the respondent’s scheme precludes consideration of any of the other categories to which reasonable preference and additional preference ought to be given, under Section 167(2) it is unlawful, in that it excludes from consideration matters which Parliament has required the respondent to take into consideration.  The extent to which priority should be given within the homeless category to those who may fall within the other categories is a matter for the respondent.  But those who have needs which are capable of falling into any of the other categories are entitled to have those needs taken into consideration.

The respondent’s final argument is that its duties to the homeless require it to provide suitable accommodation, and that therefore some of the needs identified in  Section 167(2) are already dealt with under part VII of the Act and therefore do not need to be separately catered for within the homeless category.  In relation to (a) and (b) it may well be that the respondent could consider both to be subsumed within the homeless category, (b) ipso facto, and (a) because of the obligation owed to the homeless in any event under part VII, as I have already indicated.  It may also be that the respondent would consider that the homeless category subsumed those in (f); but that still leaves those within (c), (d) and (e) and those to whom  additional preference has to be given.   In particular, it has to be noted that the obligation to provide suitable accommodation for the homeless, which certainly includes consideration of medical or welfare requirements, is not an obligation directed to the provision of settled accommodation which is the thrust of (e) and, a fortiori, those to whom additional preference has to be given.

For all these reasons, I consider that the respondent’s scheme, in precluding consideration of other needs identified in Section 167(2) is unlawful.