The Joy of Housing Law
The Department for Communities and Local Government has released new guidance for local authorities in regard to the operation of choice based lettings (CBL) schemes. This link is to the PDF of the Guidance.
A post with an initial consideration of the Guidance will be along in a scant few days time, because we’re nice people here at Nearly Legal.
Now that it’s the silly season and there’s not much happening out there, there’s an opportunity to reflect on what’s not happening with the Code of Guidance on Choice-Based Lettings, or more accurately, why it hasn’t been issued. Is CLG on the naughty step?
The last Code on allocations was issued in November 2002 in the wake of the Homelessness Act but so much has happened since - allocations have gone regional, there’s been talk of a pan-London allocations scheme, loads more cash has been thrown at CBL, there are concerns about the effect of CBL on vulnerable households, and then there’s accessible housing registers (don’t start me). That’s not mentioning law stuff like the impact of the DDA, the various JRs (with Locata schemes causing problems), and possible contracting out complications.
Last January, CLG issued a draft Code on CBL which was pretty anodyne really but did draw attention to some of the developments (eg regional allocations). We’ve been told since that the new code is just a couple of weeks away from publication but that excuse is wearing a bit thin. I have a degree of empathy with the CBL acolytes and those running these schemes, who are developing them in something of a wasteland of government guidance. My sources (they who must not be named) tell me that a plot is being hatched to amend Part 6 of the 1996 Act and possibly also Part 7. Perhaps that’s what is keeping the Code unpublished; perhaps they’re waiting for Ahmad (NL note on Ahmad here) to be decided by the HL (it’s not being heard until next January). There’s endless possible speculation and scope for conspiracy theory. It would be nice to be told, even if it were by means of a transparent envelope held by the housing minister while taking a photo opportunity.
This was a judicial review against Southwark’s allocation policy, reported in this post, which Southwark, rather surprisingly, appealed.
Faarah, R (on the application of) v London Borough of Southwark [2008] EWCA Civ 807 was the result. The issue was the manner in which Southwark had translated medical priority points for transfer under the old allocation scheme into priority banding in the Choice Based Letting scheme that began in September 2005, and as a result priority dates.
Southwark appealed on three issues.
Firstly
that the judge was wrong to treat the criteria for 20 medical points under the old scheme and for inclusion in band 3 on medical grounds under the new scheme as indistinguishable in substance, and secondly, that in any event Southwark was entitled in the exercise of its discretion to adopt the administrative practice that it did as a transitional step in moving from the old scheme to the new scheme.
The Court of Appeal said that the Judge was right to treat the criterea as identical. Southwark had adopted an unpublished administrative scheme that did not accord with their published criterea. Southwark’s discretion did not extend to allocating housing other than by its published scheme.
Second, on the dating of priority, Southwark argued that there was no requirement for priority to pre-date the new scheme and in any case, the applicant only achieved band 2 priority through the multiple needs provision of the new scheme. The applicant pointed out that Southwark gave may people priority dates well before the introduction of the new scheme. Consistency in application should backdate the applicant’s priority to the date of her award of 20 points medical priority. The Order from the judicial review was unclear on this point, quashing the original priority date given to the applicant but not specifying a new one.
The Court of Appeal could not find a clear rationale for awarding priority dates, other than the obvious one of starting from Sept 2005 for everyone who predated the new scheme on the list. Southwark did not argue for this, as it does not accord with their actual practice. The Court said that any mechanism for awarding priority dates should be published and that Southwark could (impliedly should) regularise their position in that way for the future.
Thirdly, Southwark argued delay by the applicant from 2005 to 2007 in bringing the claim meant that she was not entitled to relief. The Court of Appeal found no reason to reverse the Judicial Review on this point. Southwark had been and continued to act unlawfully.
On relief granted, Southwark argued the delaration made was ‘not conducive to good administration’. The Court of Appeal was not impressed:
When pressed to explain his reasoning, he said that the making of a formal declaration would place a greater onus on the council to correct the practice than if the relief were limited to an order specifically relating to Ms Faarah. I found that a surprising and rather worrying submission. If it is true, it provides all the more reason why it is in the interests of good public administration that the judge’s declaration should stand.
An argument that Southwark should be allowed to continue an unlawful practice because changing it is inconvenient? Marvellous.
It appears that the Court of Appeal shared my surprise that Southwark had appealed this on all issues. Lord Justice Sedley agrees with the main judgment and adds at 53-54:
I share his concern at the sustained endeavour of the local authority, through Mr Broatch, to treat this appeal more as a damage limitation exercise than as an endeavour to get their policy and practice within the law. Both Southwark and other authorities with similar schemes have a duty to make sure that their schemes are compliant with their statutory obligations and are not subverted by inconsistent administrative practices.
The other rider is that all the members of this court would wish to express their appreciation of the skilful professional service which Ms Faarah has had from the Southwark Law Centre. As the history set out by Lord Justice Toulson shows, the law centre, by careful and well-informed correspondence, was able to locate and challenge the precise error of public administration which this appeal has confirmed. It is of importance to the administration of justice, as well as to many individuals, that there should continue to be law centres like Southwark’s which are able to offer professional help of high calibre to the neediest people.
Following the gloomy conclusions of my previous post, and the vulnerability of law centres at the moment, that gets a round of applause.
It may have taken nearly a year after Margaret Hodge’s ‘they come over here taking our housing’ outburst, but it turns out that she was wrong (and I was right, so there).
The early findings of a major survey into social housing allocation ordered by the Equality and Human Rights Commission are that:
There is no evidence in the research of any abuse of the system including “queue jumping” to the significant detriment of any group, including white families.
and that
new migrants made up less than 2 per cent of the total number of people in social housing throughout the UK. Around 90 per cent of those living in social housing are born in the UK.
In fact, 11 per cent of new migrants have been allocated social housing compared with 17 per cent of UK born residents, which, given the relative income spread between new migrants and UK born residents in general, suggests that the disparity is even greater than these figures suggest.
Eminent sense is talked by a spokesman for Barking & Dagenham Council:
We know that that view [of the system being unfair] is wrong but part of the way of putting it right is to find out why they felt that in the first place.
Of course, actually doing something practical about it would help too. Like there being more social housing.
So what did Hodge actually accomplish? She managed to legitimise the fear-mongering venom of the BNP in the area. A heartfelt ‘top work’ for that, Margaret.
This is the second of the two judicial reviews of Southwark’s allocation scheme and arguably the more significant of the two. (The first case is in the previous post.)
R(Faarah) v Southwark LBC [2008] EWHC 529 (Admin) concerned Southwark’s managment of the transition from a points based scheme to a CBL scheme and specifically the award of priority dates in the new Bands.
The applicant had 20 points under a medical assessment pior to the introduction of the CBL scheme in September 2005. Southwark’s points based scheme had four categories - 10, 20, 30 points and ‘urgent medical need’. The CBL has four bands, A to D (no priority). The applicant is now in Band 2 for cumulative medical and overcrowding needs. The dispute was over the priority date - which gives priority over later entrants to a Band in bidding and is therefore of considerable importance.
The applicant was (after some intervening notifications) given Band 3 in August 2006, with a priority date of 19 September 2005, the date of the introduction of the CBL scheme.
However, Southwark had not set the priority date for all applicants transfered to the new scheme to be the date of the introduction of the scheme. many had priority dates from their application under the prior scheme.
The published scheme said that registration date within the Band was the priority date. The applicant challenged on the basis that this was not the policy actually being operated.
Southwark maintained that there had been a transitional scheme in which those with 21 or more points under the old scheme were placed in category A and given a priority date of the date under the old scheme they were awarded 21 or more points. Those with 10-20 points were in category B and given no medical priority under the new scheme, N was for those with 10 points or less.
There was a broader challenge on the rationality of Southwark’s CBL bidding scheme, on the basis that by permitting only one bid in a cycle, housing was allocated according to random choices of the applicants, not greatest need.
HHJ Mackie QC held that:
Of the two cases, Faarah is likely to have the most impact, as the unlawful practice potentially extends to a large number of people with 20 points medical priority under the old scheme. It also highlights the need for local authorities to ensure that transitional provisions actually accord with published allocation criterea.
It also appears from both cases that broader challenges to the rationality or fairness of Choice Based Letting schemes are in for a very steep up-hill struggle.
Counsel for the applicant was Robert Latham, instructed by Southwark Law Centre.
I’ve been waiting to post on the outcome of two judicial reviews of Southwark’s allocation scheme for a while, hoping they would appear on BAILII. They haven’t, but Garden Court have briefly set out the cases in their 24 March bulletin. So, here is the first of two posts on these cases.
R(Yazar) v Southwark LBC [2008] EWHC 515 (Admin) concerned Southwark’s inclusion in the Choice Based Letting (CBL) Scheme of a Band 1 (highest) priority for a ‘Social Services Nomination’. The applicant had been recommended for Band 1 priority by her social worker, but housing and social services then denied that a nomination had taken place. Southwark initially denied that there was a formal process for social services nominations, then stated that there were criteria that were in addition to those given in the published allocation scheme. Southwark did not give reasons for refusing a social services nomination until immediately before the hearing of the judicial review, in the form of a witness statement.
The challenge was on three grounds:
On 1. Mr Justice Simons held that the Allocation Scheme was defective in relation to the making of social services nominations. Until the clarification in evidence, the basis on which such nominations were made, and by whom, was unclear to the point of obscurity. Defendant to add a clear explanation to the published scheme.
On 2. the Court held that, although a local authority was not bound to express its reasons for not making a nomination in every case, it was bound to give its reasons if asked. However, given changes in the applicant’s circumstances, it was not necessary to quash the decision in her case.
On 3. the Court was not prepared to entertain what could be construed as a challenge to the Choice Based Letting scheme as a whole, Lambeth LBC v A. and Lindsay [2002] EWCA 1084 followed.
The rejection of the broader based challenge was a common theme in this case and the next, R(Faarah) v Southwark LBC.
Counsel for the applicant was Robert Latham, instructed by Anthony Gold Solicitors.
Ahmad, R (on the application of) v London Borough of Newham [2008] EWCA Civ 140 was Newham’s appeal of a JR decision that its allocation scheme was unlawful for failing to take adequate account of cumulative need. This is going to be a long post. Allocation schemes are complex and the issues surrounding their legality detailed and difficult. The impact of an allocattion scheme affects thousands of people.
Despite length, there are some important points in the judgment that won’t make it into this post. The Judgment is well worth a careful read, in particular for its examination of the history of decisions on allocation and cumulative need.
The history is that Claimant sought a transfer from a housing association tenancy to a larger property in 1999. The household was given ‘overriding medical priority’. In 2002, Newham adopted a new allocation scheme. The Claimant’s priority was maintained for a short while under transitional provisions, then he ended up with a lesser priority under the new scheme, that of ‘reasonable preference’.
Newham’s new scheme was, at least in part, a choice based letting scheme, with a reasonable preference band in which bidding took place - this was for anyone with a reasonable preference under s.167, and also for tenants seeking transfers - some 5% of the total.
Of higher priority was the band for those qualifying for direct offers. This latter band included `additional preference` (aka emergency rehousing) and `multiple needs` (introduced later after a Judicial Review was settled). The criteria for emergency housing were very rigorous. Multiple need was said to include those with more than one need falling under s.167 Housing Act 1996 (see below).
However, the actual entry criteria were considerably narrower than those of s.167. An applicant had to score three points. One point was scored if statutorily overcrowded or subject to environmental health abatement action (compare to s.167(2)(c) “insanitary or overcrowded housing or otherwise unsatisfactory housing condition”); if more than one member of the household had medical grounds for ‘reasonable preference, Newham’s scheme provided that one point was scored for each additional member of the household, but no points for the first member of the household - who had the ‘reasonable preference’ in the first band.
Housing Act 1996 s.167 provides:
“(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.
(1A) The scheme shall include a statement of the authority’s policy on offering people who are to be allocated housing accommodation –
(a) a choice of housing accommodation; or
(b) the opportunity to express preferences about the housing accommodation to be allocated to them.
(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to –
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds (including grounds relating to a disability); and
(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or others).
The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of people with urgent housing needs).
(2A) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2); and the factors which the scheme may allow to be taken into account include –
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a person and the authority’s district.
The challenge at Judicial Review was on four grounds:
The claim that the Applicant’s household had not been properly assessed for medical grounds - a fresh assessment and review was in play, so this was not at issue in the appeal.
i) the scheme did not take proper account of cumulative or composite need;
ii) the scheme did not reconcile need and choice in a rational manner;
iii) the criteria applied were insufficiently precise.
The applicant succeeded at JR on i) only. The deputy judge found that firstly, the according of same priority to tenants seeking a transfer, not entitled to a s.167 preference, meant that reasonable preference was not accorded. R(A) v Lambeth; R(Lindsay) v Lambeth [2002] EWCA Civ 1084 applied. Secondly, cumulative need was not adequately addressed, as the three points, and the additional conditions to get into ‘multiple needs’ was unsatisfactory.
Newham appealed and the applicant cross appealed on the remaining two grounds.
Newham’s grounds of appeal were that:
a) the deputy judge had applied earlier case law too onerously with regard to the Authority’s discretion. There was no requirement for all instances of multiple need to be reflected in additional priority, Newham was entitled to decide on how to deal with such cases.
b) the chain of case law did not go as far as the deputy judge had relied upon. R v Islington ex p Reilly & Mannix (1998) 31 HLR 651; R v Westminster, ex p Al-Khorsan (1999) 33 HLR 77; the Lambeth case (as above); R (Cali, Abdi & Hassan) v Waltham Forest [2006] EWHC 302; could all be distinguished from the Newham scheme and in any case didn’t address the situation after the introduction of s.2A by the Homelessness Act 2002.
c) S.167(2A) gives the Authority a very broad discretion on how to adress s.167 priorities within the scheme, even to the extent of not distinguishing priorities within or between the s.167(2) categories at all.
d) The transfer tenants are capped at 5%, so are treated differently, and Newham can allocate in this way if it doesn’t dominate the scheme.
The applicant maintained that the authorities are consistent and not affected by the introduction of 2A. The Guidance makes this clear. Something more is needed than the two band scheme as the direct offer critera do ot provide a rational means for identifying greatest need.
The Court of Appeal upheld the JR judgment. S.2A did not affect the established line of authorities and in any cas, 2A was solely concerned with additional factors that may be taken into account in determining priorities, and is not a licence to ignore the relative needs of those falling under s.167(2. The move to greater choice does not affect the requirement for the assessment of cumulative need. Lambeth upheld. Newham’s two band scheme did not have a sufficient mechanism to deal with composite need. Plus, that the transfer tenants had the same priority as the reasonable preference band meant that no ‘necessary head start’ was being given.
However, the appplicant’s other grounds in the cross appeal did not succeed.
Reconciling choice and need, to the extent that it was not covered in ground i), does not mean a legal requirement to give a choice to those currently allocated accommodation by direct offer. Government policy may favour that, but does not require it.
The criteria in the allocation scheme were sufficient. It is unnecessary to gloss or expand on the statutory criteria. it is sufficient that the factors taken into account in reaching a decision are spelled out in the decision.
I think there are more allocation case judgments due shortly, at least at Judicial Review, so this is probably going to be a continuing series.
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