Woolfe, R (On the Application Of) v London Borough of Islington [2016] EWHC 1907 (Admin)

Another allocation judicial review, related, but perhaps distinct from the line of ‘reasonable preference’ cases we have previously seen. The issue, in part, Islington’s use of a ‘points threshold’ for allowing bidding for properties, though not for qualification to the register.

Ms W was owed the full homeless housing duty by Islington and was in temporary accommodation. he had applied to the put on the Register while still living with her mother, a private tenant in Islington. Ms W was pregnant and her baby was born in September 2015. She was added to the housing register for Part VI accommodation.

Under Islington’s points scheme, she was awarded 110 points (100 for homelessness and 10 for local connection). Islington have a threshold of 120 points for allowing bidding, so Ms W could not bid.

Ms W brought a judicial review on 3 grounds:

(1) Islington’s scheme is unlawful in that it prevents applicants to whom reasonable preference must be given, but who have fewer than 120 points, from bidding at all for available properties;
(2) additionally or alternatively, that points threshold for bidding is unlawful, being in breach of section 11 of the Children Act 2004;
(3) Islington misapplied their own policy and failed to award her the 90 “New Generation” points to which she says she is entitled under Islington’s own policy and scheme.

On ground 1, the court was happy to distinguish Jakimaviciute, Alemi and HA. In Jakimaviciute and HA the claimants had been excluded from registering altogether. In Alemi there was an absolute bar against bidding for 12 months, whereas in the present case only those who were not eligible for 120 or more points were unable to bid. There was no breach of Housing Act 1996 s.166A(3) as Ms W was not excluded from the register. It was lawful for Islington to operate a threshold and the level of threshold was a matter for their (reasonable) discretion.

On ground 2 – this also failed.

Islington say that they did have due regard to the need to safeguard and promote the welfare of children, both generally when framing their scheme and specifically when considering the case of the claimant and her daughter specifically. The scheme includes the possibility of discretionary points being awarded for “welfare needs”, and the different “welfare categories” described as A or C on pages 13 and 14 of the Housing Allocation Scheme may attract 150 or 40 points respectively.

The Welfare categories included reference to social services for any views and that had happened in this case. And so

In my view, the having of that category (Category C) and its consideration in individual cases also involves having regard to the need to safeguard and promote the welfare of children. Provided the welfare of children can be sufficiently safeguarded and promoted in individual cases by the award of welfare points, there is in my view no inconsistency between the statutory duty under section 11 and the setting of a points threshold for the practical reasons already discussed.

On 3, the ‘New Generation’ scheme argument, this scheme awarded additional points, 90 points, with eligibility criteria as follows:

The scheme is open to the sons and daughters of council, housing association and private sector tenants living with their parents in the borough …

The criteria for the scheme are –

• applicants must be aged eighteen years or above

• applicants must be living continuously as an agreed member of the household of an Islington resident for at least three out of the last five years

• proof of residence will be required …”

In Ms W’s case, Islington had refused these point because, at the date of decision, she had had her homeless application accepted and been moved into temporary accommodation, so she was no longer living with her mother.

Held, this was a misinterpretation of their own policy and unlawful:

In my view, the words “… continuously … for at least three out of the last five years …”, considered in conjunction with the overall policy objective, must be decisive. It is possible to read the words “be living” as meaning also “or have been living”. It is not possible to strike out the words “out of the last five years” as the argument requires. In my view, this construction is the more common sense and practical, and the less legalistic, of the rival interpretations contended for. To a lay person, three out of the last five years means exactly what it says.

It follows that in my view Islington misapplied their own policy. I will quash the decision of 23 February 2016 insofar as it refused or declined to award to the claimant any New Generation points. Islington must reconsider that decision in the light of this judgment; but they are, of course, entitled to investigate and decide whether the claimant does satisfy all the criteria, and this may require investigation of whether the claimant was actually living continuously as a member of her mother’s household within Islington for at least the required three years.

Ms W succeeded on this point, subject to any investigation of her mother’s periods of residence in Islington (there had also been periods living in Haringey).

Comment

To some extent this is a return to Ahmad principles on the Council’s discretion within an allocation policy. However, there is a significant difference between excluding reasonable preference categories from the register (as in the previous cases) and subjecting them to the same points criteria as everyone else who is on the register.

The New Generation point is specific to Islington, but does illustrate one of those moments where bad drafting and a council’s attempt to avoid the clear purpose of its policy make it come undone.