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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lynch, R (on the application of) v London Borough of Lambeth [2006] EWHC 2737 (Admin) (16 October 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2737.html Cite as: [2006] EWHC 2737 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		16 October 2006

1. THE DEPUTY JUDGE: This is an application for judicial review of the defendant's decision under Part VII of the Housing Act 1996 as to whether the applicant was homeless, to be heard with an appeal to the county court under section 204 of that Act against a review decision on the same issue. In addition to those matters, the claimant seeks to quash the defendant's Allocation Scheme, or part thereof under Part VI of the Housing Act 1996 and the defendant's assessment of the claimant as not coming within group F (that is special cases for welfare referral for transfer). In addition to the applications to quash decisions under Part VI and VII of the Housing Act 1996, certain declaratory and mandatory orders are sought.
2. Permission to apply for judicial review was given by Silber J on 21 June 2006 in which he sets out the issues in the application as follows. Firstly, whether the defects in the defendant's section 184 decision letter, dated 1 February 2006, were capable of remedy, or were remedied by the review letter dated 16 May 2006 and the subsequent county court appeal. Secondly, whether the defendant failed to consider properly whether the claimant falls within group F or whether she should be eligible for welfare points under group D. Thirdly, whether the defendant's Allocation Scheme precludes the defendant from making lawful assessment of the claimant's application for accommodation on welfare grounds under Part VI of the Act.
3. Ms Lynch has been a tenant of the defendant since 1996 and lives at 4 Gannet Court, Croxted Road, London, SE21. This is a three-bedroom flat on the second floor with no lift. She occupies the flat with a partner and two children, James (13) and Aaron (10). The family have a variety of medical problems. The claimant suffers from fibromalgia and mechanical low back pain. She has been treated for depression and migraine. The claimant has been assessed as requiring wheelchair standard accommodation. The flat is not wheelchair accessible, nor is it capable of being so adapted. It is on the second floor of an unlifted flat. She can only use the stairs with difficulty. She uses a stick to mobilise indoors and adaptations are also required to the bathroom. While some adaptations have been made, there is insufficient space for a shower or to use the bath lift which has been installed.
4. James, who was born on 1 May 1993, suffers from epilepsy (tonic clonic with absent seizures), attention deficit hyperactivity disorder and co-ordination difficulties. He has been diagnosed as suffering from Asperger's Syndrome, a type of autism. The family have been assessed by some therapists as requiring accommodation with an additional bedroom and with a garden. James demonstrates challenging behaviour, including tantrums. His occupation therapist has recommended a number of exercises to improve his fine and gross motor skills, but he lacks space in the current accommodation to do the exercises. An adviser has assessed him as having to have a private garden to provide a safe area for the claimant to monitor him and permit him to engage in activities more independently.
5. Aaron, who was born on 23 September 1996, suffers from symptoms of attention deficit hyperactivity disorder, and James Kavanagh, the claimant's partner, suffers from angina, depression and severe headaches or migraine.
6. Ms Lynch's solicitors wrote a four-page application letter with 54 pages of documentation attached, mostly reports from doctors and occupation therapists on the family members. In essence, a number of the documents suggested that Ms Lynch should have a garden to assist with her children's difficulties, also that she may become wheelchair bound and so requires a ground floor flat which is wheelchair accessible.
7. The solicitor's letter stated that Ms Lynch was not using a wheelchair at present so any interim accommodation would not need to be adapted for wheelchair access, but when permanent accommodation was offered, the situation of wheelchair accessibility would need to be considered.
8. On the basis of the family's variety of medical concerns, the letter claimed she was homeless because it was not reasonable for her to occupy her current flat, and that is set out in section 175(3) of the Act, which reads:

"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."

9. Ms Lynch took that four-page letter and attachments to the Housing Department and attended an interview. The defendant authority sent a decision letter under section 184 of the Act on 1 February 2006 in the following terms:

"In the absence of a formal indication that you have been requested to leave by notice to quit or court possession order, we do not have any reason to believe that you are homeless."

10. This letter ignored the wealth of evidence put in about the medical conditions of the occupants, and the writer appears not to have considered the argument as to whether it was reasonable for Ms Lynch and her family to continue to occupy the second floor flat.
11. Ms Lynch's solicitors replied on 20 February with a pre-action protocol letter for judicial review on the basis that the decision was not lawful as it was not a proper reasoned decision on the application. They required the Housing Authority to provide a proper reasoned decision or withdraw the decision letter and complete further inquiries before providing a properly reasoned decision. In that letter, they say that, without prejudice to the contention that the application has not been lawfully determined, the letter may be treated as a request for a review decision under section 202 of the Act. It is from this point that both sides then dug in their heels resulting in this litigation, part of which could possibly have been avoided or certainly dealt with at county court level.
12. The defendant wrote on 21 February. They refused to withdraw the section 184 decision and said that they were unequivocally treating the pre-action letter as a request for a review of the section 184 decision and the defendant's Allocation Scheme. The defendant's review decision letter was sent out of time. It finally arrived on 18 May 2006, and on 6 June the claimant issued a section 204 appeal in the county court without prejudice to their contention that the section 184 letter was a nullity.
13. Mr Latham, for Ms Lynch, said that the section 184 decision was unlawful because insufficient reasons were given and insufficient inquiries had been made by the defendants. It was unlawful because it was totally devoid of reasons on the central issue as to whether the claimant is homeless in that it is not reasonable for her to continue to occupy her current accommodation. I was referred to a number of cases on the duty to give reasons. In Re Poyser & Mills Arbitration [1964] 2 QB 467; R v London Borough of Croydon ex parte Graham [1993] 26 HLR 286; and R v City of Westminster ex parte Ermakov [1996] 28 HLR 819. These cases were decided before the Housing Act 1996 came into force.
14. I accept that reasons should be intelligible and convey to the applicant the reasons why the application has been rejected in such a way that if they disclose an error of reasoning, they may be challenged. However, since those decisions, the review procedure under section 202, with a further appeal to the county court under section 204 on a point of law, has been provided. Mr Latham said that a review under section 202 could not cure the defects in the section 184 letter. The claimant was prejudiced by the defendant's failure to provide a proper decision letter because it gave her no opportunity to make further representations before that decision was renewed. In the absence of reasons, it was not possible to make representations for the purposes of the review. Therefore, she was deprived of the two-stage process available if a lawful section 184 decision had been made.
15. The local authority appear to have made no inquiries of their own after the application was made, and that quashing the section 184 decision would enable them to make such inquiries. A review under section 202, followed by an appeal to the county court under section 204, said Mr Latham, only permits the court to quash the section 202 decision so it would not put the claimant in the same position as if the section 184 decision was quashed by judicial review. That would enable the claimant to retain the benefit of the two-stage process.
16. Under the section 202 procedure, the claimant had no opportunity to make representations until the "minded to" letter was sent, by which time the reviewing officer had formed an adverse view of the claimant's case. The review letter was outside the eight week time limit, and the claimant was not told about the review, or the procedure to be followed. The requirements to do so are contained in the Allocation of Housing and Homelessness (Review Procedure and Amendment) Regulations 1996 (sections 9(1) and 6(2)).
17. With regard to the claimant's section 204 appeal, which was consolidated to be heard with the judicial review application, similar arguments about the validity of the section 184 decision and procedural unfairness apply to this appeal with some additional grounds. It was argued in addition that: (1) the reviewing officer failed to make proper inquiries into the application; (2) the claimant was not interviewed and none of her medical or welfare advisers were contacted; (3) the reviewing officer was wrong to rely upon her medical adviser, Ms Thorpe; (4) that report (of Ms Thorpe) was wrong to consider whether it was reasonable for the claimant to continue to occupy her current home; (5) Ms Thorpe's assessment was not provided to the claimant to comment upon it; and (6) the assessment was irrational having concluded that the claimant did not need wheelchair access contrary to an occupational therapist report, nor did she give reasons for dissenting from the medical assessment of January 2000, which concluded that the claimant and her son had an urgent need to move on medical grounds.
18. On behalf of the London Borough of Lambeth, it was accepted that, although the remedy of judicial review was still available in Housing Act cases, the 1996 Act effectively transferred a procedure akin to judicial review in the county courts under section 204 of the Act: see Nipa Begum v Tower Hamlets LBC [2000] 1 WLR 306, affirmed in Runa Begum v Tower Hamlets LBC [2003] AC 430; see also Brooke LJ's judgment in Cramp v Hastings Borough Council: Rainbow Phillips v the London Borough of Camden [2005] EWCA Civ 1005 at paragraph 70.
19. In the Nipa Begum case, Auld LJ made it clear that an appeal under section 204 was not limited to matters of legal interpretation, but included issues such as procedural error, irrationality or inadequacy of reasons. He explained the policy and purpose of the 1996 Act and made it clear that the residual jurisdiction of the High Court should only be used in the most exceptional circumstances.
20. The defendants, Lambeth London Borough Council, said that the claimant's allegation that the section 184 decision was unlawful, and could only be quashed by judicial review (unlike the section 202 decision), was an attempt at circumventing the provisions of the Housing Act 1996. If the section 184 letter was unlawful because it was defective, said Lambeth, it was capable of being reviewed initially under section 202.
21. A reason was given in the section 184 decision, but it was accepted that it did not address the relevant issue. However, said Lambeth, it was a notification with a reason and therefore capable of being reviewed. Under the Allocation of Homelessness Review Procedure Regulations, Regulation 8 deals with the procedure on review, and Regulation 8(2) provides that if the reviewer considers that there is a deficiency or irregularity in the original decision or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant firstly, that the reviewer is so minded and the reasons why, and secondly that the applicant or someone acting on their behalf may make representation to the reviewer orally or in writing.
22. Deficiency or irregularity in a decision was considered in the case of Carter v Wandsworth London Borough Council [2005] 2 All ER 192. The court said in that case that deficiency or irregularity has no particular legal connotation; it simply meant something lacking. The something lacking had to be of sufficient importance to the fairness of the procedure to justify an extra procedural safeguard.
23. Carnwath LJ said at page 202, paragraph 30:

To summarise, the reviewing officer should treat regulation 8(2) as applicable, not merely when he finds some significant legal or procedural error in the decision, but whenever (looking at the matter broadly and untechnically) he considers that an important aspect of the case was either not addressed, or not addressed adequately, by the original decision-maker."

24. Whilst Lambeth accepted that the local authority's procedure in this case did not comply with the time limits for a review, nor notification of the review procedure, a "minded to" letter was sent to the claimant giving her the opportunity to make representations. She did not avail herself of this opportunity, but could have done so and that would cure the two-tier argument.
25. The claimant had made representations initially and was given the chance to make a second set of representations after the "minded to" letter. I find that, in the case of a legally defective section 184 letter, the Regulations provide for that to be rectified upon review under section 202, and that Regulation 8(2) provides an extra procedural safeguard. This provides the two-tier system which the claimant says she will have lost if the section 184 decision is not quashed. There is therefore no prejudice to her following the section 202 and 204 route.
26. The section 184 decision letter gave reasons. They were inadequate and did not address the pertinent issue, but that does not make the decision a nullity -- just defective. There is a provision for this to be dealt with under section 202 and Regulation 8(2), as set out above and clearly envisaged in the Carter v Wandsworth decision. I find that the section 202 review which was sought on a without prejudice basis to the judicial review application by the claimant, followed by an appeal under section 204, is capable of remedying the defect in the section 184 decision letter, including any legal defect. That answers the first issue for judicial review posed by Silber J. On this issue, I refuse to grant the claimant relief by way of judicial review.
27. The procedure in the Housing Act 1996 provides a suitable statutory alternative for challenging the defendant's decision. There are no exceptional circumstances in this case to invoke the alternative discretionary remedy of judicial review, although I accept that it is still a residual remedy available in Housing Act cases. The cases cited to me by the defendant make it clear that the higher courts are reluctant to be used as a backstop to the statutory provisions of the Housing Act 1996.
28. I turn to procedural defects alleged in the review procedure. The defendants refused to provide another section 184 letter which addressed the specific issue, as they were asked to do by the claimant's letter of 20 February, but elected to treat the letter as a request for a s.202 review. Unfortunately, they then failed to comply with proper time limits and made somewhat of a mess of the procedure, as accepted by Mr Carter on their behalf. Nevertheless, eventually they provided a very full "minded to" letter under section 202 which the claimant did not make any further representations to.
29. It was suggested by Mr Latham that a reviewer may not be able to change their views whatever representations are made. Such a suggestion was considered and dismissed by the Court of Appeal in Feld v Barnet London Borough Council [2005] HLR 9 at pages 125 and paragraph 44:

"Whilst, therefore, Mr Russell's primary case may not strictly speaking be met, the fact that broadly similar issues arise is enough properly to raise the question in the mind of this fair-minded observer. Is there a real possibility, as opposed to a fanciful one, that the decision maker will subconsciously, as Judge Crawford Lindsay QC believes, ask the question 'What have I heard which would make me change my mind?' In judging whether that is a real as opposed to a fanciful risk the informed observer will bear in mind that this is an administrative decision which by the will of Parliament is placed in the hands of a senior officer of the local housing authority who has been trained to the task and brings expert knowledge and experience of the local housing authority's work to bear on the decision making process. That officer knows the plight of the homeless, knows of the council's duty and knows of the stock of housing from which that duty can be satisfied. The decision maker is not a judge but the decision maker is to be taken by the will of Parliament to be competent and conscientious. So, it seems to me, the fair-minded and informed observer will bear two matters in mind:-

i) First judges do sit on matters which they have dealt with on previous occasions. In the Court of Appeal we are not infrequently called upon to hear the oral application for permission to appeal notwithstanding the fact we may have refused to give permission on paper; see by way of example R(on the application of Holmes) v General Medical Council [2002] EWCA Civ.1104. There this court held that absent special circumstances a readiness to change one's mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, was a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis. Trained decision-makers should not be treated as inferior beings intellectually unable to approach the task with an open mind. The fair-minded and informed observer would have that in mind.

ii) The second matter the observer would bear in mind is that deference must be given to the will of Parliament. This scheme has Parliament's approval. The regulations made under the Act provide under regulation 2 one specific instance where the reviewing officer may not act. The implication is surely that in all other circumstances the same officer reviewing the matter has not been perceived to be a mischief which calls for regulation."

From that decision, I find the suggestion that a reviewer cannot change their mind is no reason for failing to respond to a "minded to" letter. Nor can I accept that the officer would already be prejudiced by the "minded to" letter.

30. Dealing with the section 204 appeal, two of the grounds under section 204 claim that the section 184 letter was a nullity, and the review decision was achieved by procedural unfairness in that the defendant failed to comply with all the requirements of the Regulations. Whether the section 184 letter was a nullity has been dealt with. The Regulation procedures provide for any significant defect to be remedied under section 8(2). It has been accepted that none of the time limits nor proper notification of the reviewing officer was given, and it then becomes a matter for the discretion of the court whether the claimant should be granted relief by way of judicial review on that basis.
31. A further challenge related to the lack of further inquiries by the defendant. It was not suggested to me what further inquiries the authority should have made. They were presented with 50 pages of medical and occupational therapy information about the whole of the family. It is for the authority to satisfy themselves that they have made any necessary inquiries, and it is only susceptible to challenge on a point of law if and only if a judge considered that no reasonable Council could have failed to regard as necessary any further inquiries suggested by the appellant's advisers, see Cramp v Hastings Borough Council [2005] EWCA Civ 1005 per Brooke LJ at paragraph 58.
32. The Housing Authority did not consider it needed to interview Ms Lynch, having obtained a wealth of information about medical and welfare matters which it was not disputing. All the medical evidence was accepted, and the housing authority did not consider, either before the 184 or the review, that any further inquiries were necessary. No suggestion was made by the claimant or her advisers that further information should be sought, nor was any more offered. No response was made to the minded to letter of the reviewing officer. In line with the decision of the Cramp case, I find that the Housing Authority were not unreasonable in failing to make further inquiries. It is difficult to envisage what other inquiries needed to be made, given the wealth of information with the original application.
33. The claimant also submits that the reviewing officer placed too much reliance upon the Council's medical adviser, Ms Thorpe, a nurse, that Ms Thorpe should not have expressed a view about the suitability of the claimant's accommodation, that the claimant was not shown Ms Thorpe's report, and her assessment was irrational given that she awarded the claimant ten medical points towards rehousing on medical grounds. There was no need to provide the claimant with Miss Thorpe's reports. It contained information supplied by the claimant, and she had been interviewed by Miss Thorpe in her own flat and given information about her present circumstances. Any inclusion of extracts of that report referred to by the reviewing officer which the claimant disagreed with could have been the subject of representations to the reviewing officer after receipt of the minded to letter. Failure to provide a copy of Ms Thorpe's report is not conclusive of any error of public law: see Goodger v Ealing Borough Council [2003] HLR 51. At page 55, paragraph 6, the court says:

"In considering the judge's judgment and approach in the context of this case, it is important to bear in mind that the principles of public law and, more particularly, the requirements of disclosure and of opportunities for representation are not to be approached in a mechanistic fashion. The requirements of fairness and how they shall be put into practice vary according to the issue that is under scrutiny. The first task for a court exercising a judicial review jurisdiction or one akin to it, which is what the judge was exercising in this case, is to identify the decision said to be undermined by the lack of fairness and to ask what fairness in fact required in respect of that specific decision. The judge did not approach the matter in that way. He was led into treating the failure to produce the file as conclusive in itself of an error of public law; or, alternatively, to view the failure to produce the file [I think that was the housing file] sufficiently early as conclusive in itself, without identifying the issue before the Review Panel and the respect in which the perceived unfairness undermined the decision upon that issue."

34. The claimant was not using a wheelchair at the time of the application letter which stated that fact, and Ms Thorpe dealt with the claimant's mobility after seeing her and talking to her at home. The wheelchair issue is a potential future problem for Ms Lynch. Ms Jackson was therefore entitled to find as she did that Ms Lynch did not require wheelchair accommodation at the time of the review. The reviewing officer, Ms Jackson, sets out all her considerations in the review letter. There is no evidence that she adopted the medical adviser's findings without coming to her own conclusions. She appears to have given matters very full consideration in her six page letter, and concluded that it was reasonable for Ms Lynch to continue to occupy her current accommodation.
35. All the arguments put by those acting for Ms Lynch have been addressed and there is no suggestion that Ms Jackson's decision was Wednesbury unreasonable. Anything the claimant disagreed with in the minded to letter could have been addressed, as she was invited to make further representations but declined so to do. Ms Lynch now addresses these matters in a statement to the court provided after the review was concluded. There was an argument that the court should not take these representations into account, which had not been before the reviewing officer. This statement of Ms Lynch contains a number of matters which could have been addressed to the reviewing officer, but does not contain new information and contains a degree of argument about this case. Having considered her statement, I find it takes the matters in issue no further than the existing documentation.
36. Ms Jackson had to balance the information available to her about the claimant with the housing pressures and needs of others with priority needs in Lambeth, and it cannot be said that her conclusion was irrational. Welfare points awarded under the Allocation Scheme were not relevant to Ms Jackson's determination. They relate to different considerations for different purposes. Ms Jackson had to determine whether it was reasonable for Ms Lynch to continue to occupy her second floor flat, and she concluded that it was. That cannot be said to be irrational because of an issue about welfare/medical points.
37. The only ground in the section 204 appeal of substance is the procedural errors made by Lambeth in carrying out the review. Those errors did not, in my view, have any effect upon the decision ultimately reached. In Barty-King v Ministry of Defence [1979] 2 All ER page 80, it was held that a reviewing court should only uphold an unlawful decision if it was satisfied that the Tribunal would have reached the same conclusion if it had been made lawfully. I am satisfied that the procedural errors relating to time limits had made no difference whatsoever to the conclusions reached by the reviewing officer in this case. Similarly, the fact that the claimant did not know of the review until she received the minded to letter did not deprive her of the opportunity to make further representations upon the minded to letter, and any extracts therein from Miss Thorpe. She chose not to do so and cannot complain of unfairness or prejudice arising from her inaction.
38. It is clear from the review decision that the defendants had taken into account all relevant matters and that quashing the decision on the basis of procedural errors would not result in any different decision being reached. I therefore refuse to quash the decision or provide any other relief under section 204(3) of the Housing Act.
39. I then turn to the application for judicial review to quash the Allocation Scheme under Part VI of the Act or to quash part of the Allocation Scheme. Under section 167 of the 1996 Housing Act, authorities were required to adopt an Allocation Scheme for determining priorities and procedures to be followed in allocating housing. The scheme had to be framed so as to secure that reasonable preference is given to certain categories of housing need. That is found in section 167(2). It includes a category of people who need to move on medical or welfare grounds, including grounds relating to a disability. That is section 167(2)(d) as added by section 233 of the Housing Act 2004 from 27 April 2005. The authorities, subject to the provisions of Part VI of the Act, may allocate housing accommodation in such a manner as they consider appropriate, see section 159(7). Under section 169, a Code of guidance was provided to which the authority must have regard. The current Code was published on November 2002. Paragraph 514 of that document defines welfare grounds as intending to encompass not only care or support needs, but also other social needs which do not require ongoing care and support, such as the need to provide a secure base in which a care receiver or other vulnerable person can build a stable life. The remaining part of this paragraph is not relevant to this case.
40. In Lambeth's Housing Allocation Scheme of November 2004 there are eight allocation groups for housing purposes. The relevant categories in this case are group F, that is referrals by other bodies, including Social Services: Group F reads as follows:

"Group F — referrals

In this Group are placed applicants who have been referred to Lambeth Housing under guidelines which have been agreed with certain referral agencies, specifically Lambeth Environmental Health, Lambeth Social Services, Women's Aid, and a number of voluntary agencies providing special needs hostel accommodation.

Applicants are referred by Social Services and the voluntary agencies with a commitment to appropriate continuing support after rehousing.

In all cases, the applicants referred must be eligible to join the housing list.

Environmental Health referrals

Applicants referred by the Council's environmental health officers following issue of an unfitness notice, overcrowding direction, closing order or demolition order (under Parts 9, 10 or 11 of the Housing Act 1985) are placed in this Group.

Social Services referrals

Cases will only be placed in Group F where:

• the applicant is a young person aged 16 or over leaving care, and is ready for independent living; or

• in family cases, rehousing would:

-- prevent the likelihood of significant harm to a child in the family. The significant harm must relate to the safety of a child, and specific aspects of the current accommodation. The risk of significant harm will be evidenced by an assessment under Section 17 of the Children Act 1989.

-- facilitate discharge of children under 18 from care to their own or substitute families (including long-term foster parents); or

• the applicant is a single parent aged under 18 who is inadequately housed or housed in temporary supervised accommodation; or

• in health- or disability-related cases:

-- the applicant is recovering from or suffering mental illness and needs housing to prevent family breakdown or admission to hospital or residential care; or is ready to 'move on' from supported accommodation

-- the applicant is a person with learning difficulties who is ready for independent living

-- rehousing would facilitate discharge from or prevent admission to a Lambeth elderly persons' home.

Any Council tenant referred must be living in housing circumstances that are exacerbating their social situations: the provision of alternative

accommodation must be considered essential to assist in the short or long-term resolution of these problems.

The Group F referral must be approved by the appropriate Social Services Service Manager. Other cases of social need will be placed in Groups D or H and awarded appropriate points on welfare grounds.

Women's Aid

A woman at risk of domestic violence, regardless of her existing tenure or whether she has a local connection with the Borough, may be placed in Group F if she:

• is referred by a Women's Aid organisation under a referral agreement with Lambeth Housing

and

• has not been accepted by the Council as statutorily homeless under Part 7 of the Housing Act 1996.

Access scheme

The Access scheme covers referral arrangements with specialist voluntary organisations managing short-stay supported housing for homeless single people.

A single homeless person who is not a Council tenant, may be included in Group F if they:

• are referred by a voluntary sector agency that has an Access referral agreement with the Council

and

• live in supported short-stay Housing

and

• have not been accepted by the Council as being statutorily homeless under Part 7 of the Housing Act 1996.

There are two levels in Group F.

Most applicants in Group F are considered to have a similar high level of need and will be placed on Level 1. If a case is assessed as exceptionally urgent because of the particular needs of the household (whether a specific need, or composite needs) (bearing in mind that 'emergencies' will be transferred to Group B), the applicant will be

placed on Level 2."

41. If the applicant does not meet the criteria for the referral under F, they are given points under group D, tenants on a transfer list or do not qualify for any other allocation group. The points scheme which applies to group D applicants is set out in the document at paragraph 23 onwards and it includes a category of medical and welfare grounds. Those are referred to at ground 1 of category B:

"• households requiring very urgent rehousing on medical grounds to a property suitable to their needs (or to a property capable of being made suitable with appropriate aids and adaptations."

42. It was submitted by the claimant that group F was unlawful because there may be people who have welfare grounds falling outside these criteria itemised by the London Borough of Lambeth.
43. Mr Latham said that the authority cannot fetter its discretion by restricting those grounds only to those whose welfare needs fall strictly within F. The categories are more restrictive in the 2004 scheme than they were in Lambeth's earlier scheme. Under the earlier scheme, group F included under the heading, "Health and disability related cases" an applicant living in accommodation that is unsuitable because of their disability. The current group F does not include a category for those who need to move on due to a disability, whereas section 167(2)(d) of the Act expressly includes the phrase: "grounds relating to disability".
44. I was referred to the case of R, A and Lindsay v Lambeth [2002] EWCA Civ 1084, where the Allocation Scheme was quashed because it included a group who self assessed themselves as having priority and gave them equal preference to those with the greatest need. The scheme was held to be irrational because it failed to achieve the objective of identifying and giving preference to those otherwise assessed as having the greatest need. In that case, the Court of Appeal determined that the duty imposed on housing authorities is not a particularly high one. The scheme must set out all aspects of the allocation process, but it is not necessary to do more than to explain what criteria apply to each group, and to indicate that an officer will allocate in accordance with those criteria. Lloyd Jones J in R(Cali) v Waltham Forest LBC [2006] EWHC 302 (Admin) said:

"In approaching these issues it is important to bear in mind that the court is here concerned with a broad discretionary power conferred on the authority by Parliament. As Richards J observed in R v Islington LBC, ex parte Reilly & Mannix [1998] 31 HLR 651 (at p665) it is not for the court to impose on the authority under the guise of judicial review, judgments that are properly those of the authority or obligations that Parliament has refrained from imposing on the authority. It is for the authority to decide on the particular categories of need and to decide into which categories individual applicants fall. Thus Collins J observed in R(A) v Lambeth LBC:

'Parliament has left it to the authority to decide how to assess the various categories and what weight should be attached to each. In fact, what the authority must do is assess the needs of each applicant and endeavour to give preference to those in greater need.'"

In that case, the court emphasised the discretionary power conferred on housing authorities.

45. Ms Lynch and her family were assessed with reference to group F by Pauline Morrison, who reported on 7 July 2006 that Ms Lynch's family did not come within group F criteria, either under the children in need category or the medical/welfare criteria. The criteria for awarding welfare points under the points scheme in group D are not specified, just the number of points available for certain criteria. Urgent need for rehousing on medical grounds, as assessed by the medical adviser, may be awarded 25 points, or less urgent need 10 points.
46. I find that the Cali case is of little assistance to the specific complaint in this case as it was dealing with an overall vague scheme for determining priority, not, as here, a complaint that the decision of the officer on the award of points should be defined by particular criteria determining what that award should be.
47. On behalf of Lambeth London Borough Council, Mr Carter submitted that Lambeth's Allocation Scheme provided for eligible applicants to be placed in one of eight groups within which an applicant is awarded priority. Ground D provides for points on welfare grounds to be assessed by the Social Services Department and the medical adviser. Group F is for special categories, and it is a matter for the authority to determine whether an applicant falls within F or D. The aim of the legislation is to ensure those with priority need are dealt with accordingly. The claimant must demonstrate that any restriction of categories in group F is Wednesbury unreasonable if she is to succeed. It is for Lambeth in exercising their discretion to determine group F cases. There is no fetter on their discretion since group D provides a further priority category for disabled and welfare groups. That is sufficient to satisfy the requirements of section 167(2)(d) of the Act.
48. Mr Carter says that the points awarded under D are left to the officers, who can award numbers of points set out in D according to their assessment of the competing cases. It is a matter of judgment by officers and not necessary to further define how points are awarded when such a wide range of medical or welfare circumstances may have to be considered. I find that the Housing Allocation Scheme provides for priority to be given to the most needy, and sets out all aspects of the process, and explains what criteria applies to each group. The criteria for inclusion in group F are set out in detail. If an applicant does not fit into any of those categories, such as this claimant, their welfare and medical needs are considered in category D, where they are prioritised by means of a points scheme. Section 167(2)(d) cases are accordingly prioritised under D, satisfying the requirement in the Act that they are given reasonable preference.
49. The Allocation Scheme does not prevent the defendant from making a lawful assessment of the claimant's application on welfare grounds, as they have been assessed under group D. That answers issue 3 in Silber J's decision to give permission for a judicial review application.
50. Ground 2 was answered by the defendants making the necessary assessmentS under F and D after permission was granted for judicial review. That ground of challenge has been partially covered in the findings upon ground 3 and also in the following finding. In R(A) v Lambeth, Collins J dealt with an argument that a scheme should enable an applicant to be able to look at a scheme and understand from its terms exactly how reasonable preference is accorded. It is not lawful to leave it to officers to make decisions unless the criteria are clearly spelt out and understood. That was the argument before him.
51. Collins J found that a scheme does not have to have that degree of precision. The wording of the Act does not require it. The scheme must set out all aspects of the allocation process, but it is not necessary to do more than Lambeth have done in that cause, that is to explain what criteria apply to each group and to indicate that an officer will allocate in accordance with those criteria which may be general. The point system sets out all the circumstances which qualify for points in the Lambeth scheme, but the exact numbers to be allocated on medical and welfare grounds must be a matter for the discretion of the authority, as must the category in which the applicant falls unless it can be said to be irrational to exclude them from a particular category. I do not accept that each group has to be broken down any further than general categories described under the points scheme.
52. The officers exercise their discretion as they are required to do with regard to the category and the number of points for which Ms Lynch was eligible. She may not like their decision, but it cannot be said to be irrational, nor can their discretion be said to be fettered given that group D allows them to allocate points to those in priority need on welfare grounds. I find against the claimant on issue 2 of the judicial review grounds.
53. Accordingly, I refuse to grant relief to the claimant on all aspects of the judicial review applications and the section 204 appeal.
54. MR LATHAM: My Lady, I would make two applications relating to the judgment. First, I would ask for permission to appeal. Secondly, if refused, I would ask for the time for applying to the Court of Appeal to be extended to 14 days from receipt of the approved judgment, my lady, because the judgment has been read out in the manner my lady has done this morning.
55. THE DEPUTY JUDGE: Yes.
56. MR LATHAM: On the matter of permission to appeal, in my submission, particularly issue 1, raises a point of considerable public importance. My Lady did not deal with the one decision on reasons which post-dates the 1996 Act, namely R v Camden ex parte Mohammed, where Latham J, as he was then, gave procedural guidance to claimants as to the approach that should be followed, presumably because my Lady considers that to be bad law. In my submission, the Court of Appeal ought to have the opportunity to decide whether my Lady's approach is to be preferred to that indicated by Latham J.
57. Secondly, my Lady, in my submission the allocations point does raise issues of general public importance.
58. THE DEPUTY JUDGE: Very well.
59. MR CARTER: My Lady, can I say, if you are minded to grant permission to appeal, I have no objection to the second of my learned friend's applications for an extension of time. But what I do say in relation to the application for permission to appeal is, first, we must separate off the 204 appeal because of course you do not have the power to grant permission. The claimant would have to go direct to the Court of Appeal because this is a second appeal. So really we can only be concerned with the judicial review aspects of this.
60. The second point I make is this, that although my Lady did not deal with Mohammed in any great detail, in my submission, as I think I submitted in oral argument, the points made by Latham J were very much throw away at the end of his judgment.
61. THE DEPUTY JUDGE: Yes, they were obiter. I think that is why I did not deal with it.
62. MR CARTER: It was obiter at best, and given the authority that my Lady has referred to, in particular the two Begum cases and the reference to Regulation 8(2), my submission is that there is no reasonable prospect of success on that point.
63. Secondly, I also say in relation to the application for permission to appeal on the allocations point, that my learned friend really has not made out a convincing case when set against my Lady's reasons.
64. THE DEPUTY JUDGE: Thank you. I am going to refuse permission to appeal. I do not think either of the grounds raised are sufficient to warrant going to the Court of Appeal on the judicial review application. Clearly, the question of any appeal from the section 204 decision could only be granted by the Court of Appeal in any event, because that is effectively the second appeal. However, I will extend time to appeal until seven days after approval of the transcript, so that if the claimant wishes to proceed, they are not penalised by being out of time because I have not prepared a written judgment.
65. MR LATHAM: My Lady, I make the point very quickly, the normal time would be 14 days to appeal. It is only seven days if one is renewing a refusal of permission.
66. THE DEPUTY JUDGE: So it should be 14.
67. MR LATHAM: Indeed.
68. THE DEPUTY JUDGE: Thank you. I will put that in. It should be time to seek leave to appeal.
69. MR LATHAM: Indeed.
70. THE DEPUTY JUDGE: Time to seek leave to appeal extended to 14 days after approval of transcript.
71. MR CARTER: My Lady, I do ask for an order for costs in favour of the local authority. The claimant is of course publicly funded, so it would have to be the usual order, and if you are minded to do so, I have the usual order which I can read out to you.
72. THE DEPUTY JUDGE: Would you please because I cannot see any objection to the costs being awarded. It is the public funding scheme in any event --
73. MR LATHAM: I cannot oppose it. I would simply say it may assist if we fax a copy of the order to the Administrative Court office.
74. THE DEPUTY JUDGE: I would like to write it in my book anyway. Claimant do pay defendant's costs --
75. MR CARTER: Such costs to be subject to a detailed assessment if not agreed, and such order not to be enforced without a determination of the amount which it is reasonable for the defendant to pay in accordance with section 11 of the Access to Justice Act 1999.
76. THE DEPUTY JUDGE: Thank you. Very well, that will be Part 3 of the order. First, permission to appeal refused; secondly time to seek leave to appeal extended until 14 days after approval of the transcript and then the costs order which we have already just read out.
77. MR LATHAM: Fourthly, I would ask for a Community Legal Service assessment of my costs.
78. THE DEPUTY JUDGE: Certainly. Claimant's costs to be subject to detailed public funding assessment.
79. MR LATHAM: Indeed.