Case No: CO/4427/2004
Neutral Citation Number: [2005] EWHC 1277 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday, 22 June 2005

Before :

THE HONOURABLE MR JUSTICE WILSON
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Between :

	THE QUEEN, on the application of VINCENT ONUEGBU	Claimant	
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	THE LONDON BOROUGH of HACKNEY	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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The Claimant, Mr Onuegbu, appeared in person.
Mr Wayne Beglan (instructed by Messrs. Bircham Dyson Bell) for the Defendant, The London Borough of Hackney.

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Judgment
THE HONOURABLE MR JUSTICE WILSON

SECTION A: INTRODUCTION

1.	Mr Onuegbu, the claimant, acting in person, applies for judicial review of a decision allegedly taken by the London Borough of Hackney, the defendant, in relation to the application of himself and his wife for transfer from existing accommodation of which the defendant is the owner and of which they are the tenants, to other accommodation owned by the defendant and of which they would wish to be the tenants.  I mean no disrespect to the claimant’s wife if, for convenience, I treat him as the tenant and as the applicant for transfer. 

2.	The claimant alleges that the defendant took the decision under challenge on about 11 August 2004 and he describes the decision as having been ‘that it would not consider the claimant for any offer of accommodation due to rent arrears’.  The claimant contends that the alleged decision was unlawful and should be quashed.  The defendant now denies having taken any such decision, whether in August 2004 or otherwise.  It concedes that, if at such time as alternative accommodation might be offered to him, the claimant, who is, according to the defendant, in arrears of rent, remains substantially in arrears, such  might well preclude his being offered a transfer.  But, says the defendant, no decision to that effect has been taken because the claimant’s application for transfer, which is in a number of queues reflective of different areas of Hackney, has not reached that point at the top of a queue at which alternative accommodation would be offered to him. It is, says the defendant,  only at that point that any such decision would be made.  It follows that the defendant also denies having taken any decision not to ‘consider’ the claimant’s application for transfer by reference to arrears.

3.	Subsidiary to the main challenge in these proceedings was a complaint  by the claimant that the defendant had unlawfully failed to make available to him a copy of its housing policy document, including a statement of  its policy as to the determination of applications for transfer.  The claimant’s claim was issued only on 14 September 2004; and it had only been five weeks prior thereto that he had first asked the defendant for the policy document.  In due course, namely on 7 October 2004, the defendant supplied the claimant with the document; and it adds that the document was at all times available on its website.  On any view  the subsidiary claim has now become redundant.

SECTION B: THE BACKGROUND

4.	Before I chart the progress of the claimant’s application for transfer, I must refer to the background referable to the claimant’s existing tenancy of accommodation owned by the defendant.

5.	The claimant is the tenant of a one bedroom flat in a block owned by the defendant, namely 7 Lemsford Court, King’s Crescent Estate, London N.4.  The claimant’s tenancy of the flat began in 1994.  Currently living there, obviously in extremely overcrowded conditions, are the claimant, his wife, his ten-year-old son, his six-year-old son, his three-year-old daughter and also apparently a thirteen-year-old niece.

6.	On any view the block at Lemsford Court seems for long to have been in very bad repair and it currently stands empty apart from the occupation of the claimant and his family.

7.	During the past 11 years, the claimant has been in frequent conflict with the defendant in relation in particular to the condition of his flat. He has persistently complained that the defendant has been in breach of its obligation to keep it in reasonable repair.  He has persistently not paid his rent and sought to justify not doing so by reference to the alleged breach by the defendant of its repairing obligation.  There have been no less than four sets of proceedings in the county court referable to the claimant’s complaints of disrepair and the defendant’s complaints of arrears of rent.  

8.	The first set of proceedings ended in an order made by Mr Recorder Knott on 2 May 1995.  He gave judgment for the defendant in respect of arrears of rent in the sum of £1,642.58 and for the claimant by way of  damages for disrepair in the sum of £650, with the result that a net sum was payable by the claimant to the defendant of £992.58.  The second set ended in an order made by His Honour Judge Graham on 16 January 1996.  On that occasion the defendant was claiming possession of the flat but secured only a money judgment against the claimant in respect of arrears in the sum of £1,380.86 less a nominal £25 awarded to the claimant by way of damages for further disrepair.  The third set ended in an order made by His Honour Judge Cotran on 12 November 2001.  A transcript of his judgment is filed in these proceedings; he made grave criticisms of the conduct of the defendant in failing to keep the flat in an elementary state of repair.  The arrears of rent, for which he gave judgment to the defendant, stood at £18,385.  As well, however, as directing specific performance by the defendant of its obligation to effect specified works, the judge awarded damages to the claimant in the sum, inclusive of interest, of £18,177, and awarded him costs in the sum of £2,136, with the result that not only were the arrears discharged by set-off but the defendant was obliged to, and did, pay the claimant the balance of £1,928.

9.	Although the claimant’s arrears of rent had thus been cleared, further arrears quickly accrued.  Even by 1 January 2002, they amounted to £225; by 1 January 2003, to £1,036; by 1 January 2004, to £3,853; and by 13 December 2004, being the most recent date for which I have a figure, to £7,370.  In that the claimant has paid no rent at all since then, indeed not since March 2003, the arrears will now be in a greater sum.  The claimant justifies his entire non-payment of rent by reference to further alleged breaches on the part of the defendant of its obligation to repair; and it must follow that he alleges further breaches on the part of the defendant arising within weeks of Judge Cotran’s order.  

10.	In December 2003 the claimant issued further proceedings, namely the fourth set, by which he claimed damages for disrepair.  He described his claim as being for ‘damages not exceeding £12,000’ and he also included a claim for an ‘order that the claimants and their children be provided with suitable accommodation as a matter of urgency’.  By its defence and counterclaim, the defendant took issue with the allegations of disrepair and, in connection with the claim for an order for the provision of alternative accommodation, alleged that the claimant and his wife had lodged an application for transfer, which it  was considering.  In due course the defendant applied to strike out the claim for an order for provision of alternative accommodation on the basis, I assume, that it was not open to the county court to make any such order.  In the event, by order of a district judge dated 11 August 2004, the entire claim was stayed; but it is unclear to me whether it was stayed in order that the parties should attempt a mediated solution or in order that the claimant should articulate his complaints about the defendant’s processing of his application for transfer in these present proceedings.  The defendant also points out that, on an earlier occasion, a district judge had allocated the claimant’s claim for damages to the small claims track; and thus the defendant suggests that it is unlikely that any award of damages referable to disrepair will come close to eliminating the present arrears.  Prior to the resolution of the claimant’s pending claim for damages, however, it is impossible for me to determine whether he has been justified in withholding rent to the extent to which he has done so or indeed at all.  It is theoretically possible that he will establish an entitlement to have done so.

11.	I should also, for the sake of completeness, refer to proceedings which the claimant brought against the defendant in the county court in 2001 under the Race Relations Act 1976 for damages for alleged racial victimisation on its part towards him.  At one stage judgment was given in those proceedings against the defendant by way of default; but it seems to have been set aside and a defence to have been entered; and it is unclear to me how that litigation was resolved.

SECTION C: THE DEFENDANT’S RE-HOUSING POLICY

12.	Pursuant to its duty under section 167(1) of the Housing Act 1996 the defendant has developed, articulated and published schemes for allocating its accommodation.  The first scheme relevant to the present case was set out in a statement dated April 1998; and the second such scheme, which replaced the first, was set out in an interim document dated May 2002, which, subject to certain amendments, is still operative.  There is no need for me to analyse the complicated system of points and bands which lies at the centre of each scheme for the identification of which of the defendant’s many applicants should be offered its scarce accommodation.  I need note only the respective statements of policy in relation to an applicant for transfer who is in arrears of rent.

13.	In this respect the statement which articulated the 1998 policy was as follows:

“The Council’s policy is that transfer applications from tenants in rent arrears will be suspended from the list at the stage of Notice of Seeking Possession.

…

A transfer can only be considered actively where any outstanding arrear has been reducing in a consistent manner (and in line with any arrangement entered into with the relevant housing officers) for a period of at least six months.  Authority to override arrears must be authorised by the Contract Manager or delegated officer.

…

Exceptional cases.
If however, the Council has agreed that there is an urgent need to move for the protection of the tenant or a member of her or his household or where there are overriding health considerations …, rent arrears will not prevent an offer of alternative housing being made.  If health or social factors apply, a full assessment will be carried out before a final decision on suspension is reached.”

14.	On behalf of the defendant Mr Beglan explains that the effect of the 1998 policy was that, even in a case which fell short of service of a Notice of Seeking Possession, an applicant for transfer who was in substantial arrears of rent which were not being reduced pursuant to an arrangement with the defendant would, unless the case was exceptional, suffer the suspension of his application until the arrears became no longer substantial or were reduced pursuant to such an arrangement or until his case became exceptional.  The claimant, an experienced litigant of high intelligence and with a considerable grasp of the law in this area, does not contend that the 1998 policy, or indeed the 2002 policy, is itself unlawful.  Were authority needed for the proposition that a local authority’s policy for the determination of applications for transfer may include consideration of rent arrears provided only that the policy is applied flexibly, it is to be found in, for example, R (ex p. Njomo) v Lambeth LBC, (1996) 28 HLR 737, per Sedley J. as he then was.

15.	In relation to applications for transfer by tenants with rent arrears, the interim document dated May 2002, which contained the replacement  policy, was cast in the following very general terms:

“There are some other circumstances where you may be considered ineligible for an offer of housing because of your unacceptable behaviour… For example, if you owe the Council rent arrears or you have been evicted because of rent arrears or other breaches of your tenancy conditions or if we are seeking possession of your tenancy because of serious breach of the tenancy agreement.

If we decide that you are not eligible to be considered for an offer of housing, we will write and tell you why.  If you think that you should be eligible for an offer now or in the future, you can make another application and tell us why you think you should be eligible.  We will consider what you tell us again and review our decision and let you know the outcome.”

16.	The substitution of section 167(2) of the Act of 1996, effected by section 16(3) of the Homelessness Act 2002, expressly enabled a local authority, by section 167 (2A)(b), to provide in its scheme that such of a person’s behaviour as affected his suitability to be a tenant, which would clearly include his incurring substantial arrears of rent, could be taken into account in the allocation of accommodation.  The Act led the defendant to flesh out its new policy on applications for re-housing by tenants in arrears of rent and to explain it in a document entitled ‘Update – April 2003’ as follows:

		“Rent Arrears
Where existing Council or housing association tenants or licensees …  are in arrears of rents sufficient to merit action (e.g. notice to be served), then no allocation of housing will be made until/unless an arrangement is made to clear the debt.  Any arrangement made [must] be kept for at least six months.  The re-housing application will be dealt with in the usual way but ‘bypassed’ if it reaches the top of its list, until and unless the relevant neighbourhood officer … confirms that the arrears have been cleared or an arrangement kept as agreed.

However, in an emergency where life and limb are at risk, the existence of rent arrears will not prevent emergency/temporary housing being provided.”

17.	Mr Beglan submits that, although only more clearly explained in the update dated April 2003, such should be taken as having been the defendant’s policy with effect from May 2002.  Mr Beglan explains the difference between the 1998 policy and the 2002 policy as being the difference between suspension and bypass.  Under the 1998 policy a tenant who was in substantial arrears, which he was not by arrangement reducing, would, in the absence of exceptional circumstances, find his application for transfer suspended.  It would in effect be removed from the main line travelling up the various queues towards  an offer of accommodation and be placed in a siding until, for whatever reason, the circumstances which justified suspension no longer obtained.  Under the 2002 policy, however, such an applicant would not be suspended in the sense of being removed from the queues.  Rather, he would remain in the queues but, at the time when his position would otherwise earn him an offer, the arrears would, in the absence of exceptional circumstances, lead to his being bypassed in respect of that offer.  He would nevertheless remain in the queues so, unless in the interim some other applicant with greater points had arrived so as to take precedence over him, he would, when the next relevant accommodation became available, again find himself at the top of the queue but would, in the absence of exceptional circumstances, again be bypassed; and so on.  The difference between the two policies may be subtle and the net effect on the applicant in substantial arrears will usually be the same; but under the 2002 policy he is never removed from the queues.  It should not be forgotten that, even under the old policy, an application which had been suspended but which later fell to be reinstated, did not go back to the bottom of the queues but joined the queues at the level apt to the number of points which it attracted.

SECTION D: THE TREATMENT OF THE CLAIMANT’S APPLICATION

18.	There is doubt as to when the claimant applied for transfer.  He produces a copy of a transfer application form, signed by himself and his wife, dated 30 August 2000.  The defendant has no record, whether in its computer system or otherwise, of receipt of this application.  Nor can the claimant point to any other evidence explicable only upon the basis that this application was received by the defendant.  The application which it definitely did receive and process was an application dated 3 May 2001 signed, as it happens, only by the claimant’s wife. She contends that she completed this application only upon learning that the defendant had no record of any previous application.  This is the application which has been treated as the subsisting application for transfer; and the arguments raised in this claim do not turn on whether the defendant did receive, and should thus have processed, the application purportedly made eight months earlier.  The forms provided by the defendant which the claimant and his wife purport to have signed and dated 30 August 2000 and which the wife definitely signed and dated 3 May 2001 are identical.  On the forms the defendant printed a clear warning that ‘your transfer application may be delayed if you owe rent’.  Whereas in the form purportedly signed on 30 August 2000 the claimant and his wife had represented that his niece was a member of the household, there is no reference to her in the application dated 3 May 2001.  More important, in signing the later application, the wife recited the claimant as being a co-applicant but added in manuscript ‘… my husband has left us! He returns occasionally!’.  Apparently it was untrue that at that time the claimant had left home.  The wife alleges that one of the defendant’s officers advised her to make that false assertion in order to assist her claim.  Notwithstanding that the form invited an applicant to choose at least six of the 23 specified areas of Hackney as acceptable for relocation, and notwithstanding that, on the form purportedly signed in August 2000, six such areas had been identified, the wife, by her application dated 3 May 2001, chose only four such areas.

19.	It will be noted that the application for transfer dated 3 May 2001 was made at a time when the defendant’s claim for possession and the claimant’s counterclaim for damages were approaching resolution by Judge Cotran.  By then the arrears of rent were very high and the defendant did not accept that there was any substantial set off referable to disrepair.  Thus it comes as no surprise to me that when, on 16 October 2001, one of the defendant’s housing officers spoke either to the claimant or to his wife about the transfer application, she should have noted on her computer records ‘case on hold due to high rent arrears’.  For the purpose of these proceedings, Ms Noonan, the defendant’s Assistant Director of Housing, has signed a generally helpful statement of the defendant’s policy towards applications for re-housing and of the management of the claimant’s application.  Ms Noonan criticises the officer’s entry as reflecting loose language; but, in that the policy applicable in October 2001 was the 1998 policy of suspension of applications made in such circumstances, I cannot find fault with the officer’s description of the application as having been put ‘on hold’.

20.	Only weeks after that note was written, namely on 12 November 2001, Judge Cotran gave judgment.  Its effect was to eliminate the arrears.  The suspension of the application for transfer should have been lifted; and the application allowed to make normal progress.  To her statement, Ms Noonan has exhibited copies of the defendant’s entire computerised file relating to the claimant’s application for transfer.  It is not clear to me that at that time the suspension was duly lifted.  Mr Beglan relies on a note by one of the defendant’s officers of a telephone conversation with the claimant on 13 December 2001.  It is clear from the note that the officer explained to the claimant that, surprising though it may seem, his points, referable in particular to overcrowding, were not high in relation to many other applications and that he should consider increasing the number of areas to which he would be prepared to move.  In this regard the officer noted that he sent a fresh transfer form for completion by the claimant; but there is nothing to suggest that the claimant ever submitted it.  Mr Beglan argues that that record of the conversation is consistent only with the defendant’s recognition that suspension should be lifted.  I would prefer to have seen more explicit evidence of the lifting of the suspension and, in the light of later documents to which I will refer, I remain in doubt as to whether the suspension was lifted in the wake of Judge Cotran’s order.  Nevertheless I must remember that further arrears of rent began to accrue immediately after the order; for example they had reached £500 even as early as March 2002. So, subject to the still open question whether immediately after the judgment the defendant committed further breaches of its repairing obligations which entitled the claimant to damages equal to the arrears, there was ground for the defendant to reimpose suspension very soon after the judge’s order had been made.

21.	On 12 November 2001 Judge Cotran had ended his judgment with an expression of hope that the application by the claimant and his wife for transfer would receive the defendant’s immediate attention.  The judge would be the first to accept that his comment was of no binding legal effect.  Unsurprisingly, however, the claimant and his wife pressed the defendant to act upon it.  The wife also approached her MP, Ms Diane Abbott.  As a result of her approach, Ms Abbott wrote to the defendant by letter dated 10 July 2002 and enquired about the progress of the application for transfer.  By letter dated 22 July 2002, by one of its housing officers, the defendant replied to Ms Abbott.  She explained that, by reference to the overcrowding in the claimant’s home, the application had been given a place in one of the priority bands but that it was impossible to give a firm indication as to when it would result in an offer of accommodation.  She added  ‘lastly, [the wife’s] case has been put on hold due to an outstanding amount on her rent account’.

22.	It is to be noted that by July 2002 the revised policy dated May 2002 had come into operation.  The system whereby significant arrears led to ‘suspension’ or to the placement of the application ‘on hold’ had been abandoned.  Thus it is no surprise that, in her statement, Ms Noonan should comment on the statement in the officer’s letter dated 22 July as follows:

“…this is an unhelpful use of language as an application cannot be put ‘on hold’.  To be strictly accurate, the letter should have expressed words to the effect of: ‘[the wife’s] case is liable to be bypassed when it reaches the top of the list due to the outstanding amount on her rent account.”

Although Ms Noonan’s construction is that the officer was only using sloppy language, another construction is that, following the judgment dated 12 November 2001, the application had never been taken out of suspension.

23.	It is noteworthy, that, in making her enquiry of the defendant, Ms Abbott had stated to it that, as far as she was aware, the wife’s rent account was up to date.  It is seems likely that the wife had thus represented matters to Ms Abbott. For, in a letter to Ms Abbott dated 31 July 2002 in which she appears to have been commenting upon the defendant’s letter to Ms Abbott dated 22 July, the wife expressly averred that her rent was up to date.  The truth was that, as at 22 July, the arrears, subject to any set-off, amounted to £1288, although I should add that by 5 August they had been reduced to £422.

24.	By letter dated 23 April 2003 the defendant wrote to the claimant.  It stated that it had received his formal confirmation that he wished to remain on the housing list and stated that his application did indeed remain on the list.  Mr Beglan suggests that such is some evidence that, at any rate by April 2003, the claimant’s application was being properly managed, i.e. otherwise than by suspension, pursuant to the May 2002 policy.  The defendant’s computerised records for 3 June 2003, however, cast some doubt upon that suggestion.  On that date the claimant attended an interview with one of the defendant’s housing officers.   The claimant complained bitterly about the condition of the flat, in terms of pigeon droppings, infestation and damp and explained that he was withholding his rent by virtue of that disrepair.  It is clear from the note that the officer contacted one of his colleagues in the repair department and requested an inspection of the flat.  The officer’s note of the interview proceeds as follows:

“I also contacted re-housing, who confirmed that, although tenant has her housing priority due to overcrowding, the case was on hold due to the arrears.  Tenant therefore claimed that the council was victimising him.  I explained that this was not so.  I explained that, even if he did not have arrears, it would be some time before he was re-housed due to the high numbers of applications and shortage of accommodation… Tenant advised not to withhold rent and he said he will consider this option.  Joshna from re-housing said she has now taken his case off hold…”

The note of the interview marries up with a note made by Ms Jyotsna Tailor, of the re-housing department, on 3 June 2003 which simply says  ‘Change in application status’.

25.	In her statement Ms Noonan suggests that the officer’s record of having been told by the re-housing department that the application was ‘on hold due to the arrears’ was a further example of loose language.  With respect to Ms Noonan, I have some difficulty with that explanation.  In that the interviewing officer noted having been told by the rehousing department first that the application was ‘on hold’ (a phrase also recorded by the claimant when he made his contemporaneous notes of this interview) and second that it was now being taken off hold and in that that the rehousing department’s own records show a simultaneous change in the status of the application, it seems to me to be clear that there was a change in the defendant’s treatment of the application on 3 June 2003.  Although I have surveyed some alleged indications that the application had been brought back from suspension at an earlier stage, it seems to me to be that it was probably only on 3 June 2003 that the application was treated consistently with the May 2002 policy by being placed back in the queues, albeit subject, when it reached the top of any queue, to likely bypassing.

26.	The claimant’s challenge in these proceedings is to an alleged decision taken on about 11 August 2004 not to consider him for any offer of accommodation due to rent arrears.  The claimant’s assertion that such a decision was then made appears to relate to a statement made on behalf of the defendant to the district judge at the hearing on 11 August 2004 when the pending county court proceedings were stayed.  The defendant instructed Messrs Bircham Dyson Bell to represent it in those proceedings; and on that day a solicitor from the firm attended on the defendant’s behalf.  At some stage during the hearing, she read out in court part of an e-mail by which the defendant had given her instructions.  The part which she read out was as follows:

“[The claimant’s] case is active and he is in the tenant priority Band 3 bedroom queue.  Effectively, this means the household will be considered for offers but will not be because of his high rent arrears.”

Although the second sentence is inelegant, it seems to me to be a more or less satisfactory summary of the bypassing policy introduced in May 2002.  I agree with Mr Beglan that the statement does not reflect the making of any decision at all.  The evidence of Ms Noonan, which the claimant does not challenge, is that his application has not yet come near to the top of any of the four queues referable to the four areas chosen by his wife, with the result that the point at which the question of bypassing referable to arrears would arise has not been reached.  Ms Noonan says that, in relation to one area, the application is at number 260; to the second area, it is at number 292; to the third, it is at number 300; and to the fourth, it is not even numbered in the top 350.  Severe though is the overcrowding in the claimant’s flat, such is the regrettable state of affairs. Nor must it be forgotten that fresh applications can be made which attract more points than those presently allocated to the claimant, with the result that there is no inexorable rise of his application up the queues.

27.	Rather than to make clear that, as I am now satisfied, no ‘decision’ with subsisting effect has at any time been made by the defendant upon the application for transfer, the defendant’s initial response to the present proceedings was unfortunately to indicate otherwise.  The gist of its initial response was that there had been a decision but that it was far too late for the claimant to challenge it in the present proceedings.  Thus, in the summary of grounds for contesting the claim which was attached to the acknowledgment of service dated 7 October 2004, the defendant averred:

“[the claimant’s] transfer application is dated 30 August 2000 [sic].  It is evident that Hackney’s decision not to proceed with the application due to the rent arrears was made by July 2002.  In a letter to Diane Abbott MP dated 22 July 2002 Hackney say: ‘Lastly, [the wife’s] case has been put on hold due to an outstanding amount on her rent account.’”

Again, in a letter to the court dated 28 October 2004, the defendant’s solicitors stressed that the relevant decision had been made as far back as 2002 and that the defendant had not changed its position between 22 July 2002 and 11 August 2004.  It is most unfortunate that so superficial and misleading an analysis of the treatment of the application for transfer was at that time offered to the court and to the claimant.

SECTION E: CONCLUSION

28.	Today’s painfully detailed analysis of the defendant’s treatment of the claimant’s application for transfer highlights past irregularities of a probably technical character.  Upon delivery of  Judge Cotran’s  judgment in November 2001, the suspension of the application should have been lifted.  It probably was not lifted.  Nevertheless, grounds for renewed suspension soon arose.  It is clear that, within the short period during which the suspension should have been lifted, the claimant would not in any event have been even within striking distance of receiving an offer of alternative accommodation.  Even when in May 2002 the new policy changed the system from suspension to bypass, the claimant’s application does not seem to have been treated in accordance with the change; it seems on balance that the application remained suspended until June 2003.  Throughout that period the arrears of rent remained substantial and it is not yet established that such rent was rightly withheld by reference to damages owing to the claimant for breach of repairing obligations.  Even had the application been actively in the queues throughout those 13 months, it would never have reached the point at which it would have attracted an offer of accommodation; and, even if so, there is no present reason to conclude that it would have been unlawful for the defendant to have bypassed the claimant’s application by reference to the substantial arrears.  

29.	There has been some discussion in court as to whether, when in June 2003 the application was restored to the queues, its position therein was lower than it would have been if it had been restored earlier.  The claimant argues that the only common sense conclusion is that its belated restoration to the queues did place it lower than it would otherwise have been.  Although, in the absence of a relevant change of circumstances at home, the application came back into them with the same number of points as had been awarded to it at the time of suspension, it is possible for the claimant to construct a hypothetical argument of possible prejudice, for example if in the interim another applicant with an identical number of points had joined any of the relevant queues.  It seems moreover that a minimal number of points are added to an application for each year that it remains on the waiting list: so an applicant just below the claimant on the list at the time of his suspension might conceivably find himself just above the applicant following the latter’s belated return.  But all this is, in my judgment, theoretical as well as historical.  For, even had the claimant’s application been promptly moved back into the queues in accordance with the 2002 policy and even had his application risen to the top of the queue, there is no reason to conclude that the likely decision to bypass the application by virtue of the arrears would have been unlawful.  

30.	These proceedings are based upon an alleged decision dated around 11 August 2004 not to consider the application.  It is now clear that no such decision was taken and that since June 2003 the application has been properly treated in accordance with lawful policy issued in May 2002.  The result is that the claimant’s application is in the four queues for the areas identified by his wife; that it is far from the top of any of them; that, when it does reach the top and would otherwise attract an offer, the defendant will, assuming that it acts lawfully, consider whether the claimant is then in arrears; consider, if so, their extent; consider the likelihood of any set off referable to subsisting breaches on its part of its repairing obligations towards the claimant; consider whether the claimant has entered into and begun to implement an arrangement to clear the arrears; and consider whether in any event there are exceptional circumstances which should lead it not to cause the application to be bypassed by reference to substantial arrears.

31.	It follows that there is no subsisting decision on the part of the defendant in respect of the claimant’s application which falls for judicial review.  The claim is dismissed.