Tag Archive for 'priority'

Faarah Allocation Appeal

Published
by
NL
on 12 July 2008
in Housing law
. 2 Comments

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 Southwark had adopted an unpublished administrative scheme that did not accord with their published criterea.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.

Allocation Judicial Review 2

Published
by
NL
on 30 March 2008
in Housing law
. 2 Comments

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:

  1. There was no difference in the wording defining the requirements for 20 points under the old scheme and Band 3 under the CBL scheme. The Defendant was not entitled to treat people differently at different times when the criterea were the same.
  2. The scheme gave some applicants priority from the date they qualified for a band even before September 2005, but failed to give those who reached Band 3 priority back to the date upon which they qualified for that band (20 medical points). This was not published and was not in accordance with the published scheme and was therefore in breach of s167(8) Housing Act 1996.
  3. The broader challenge on the rationality of the bidding scheme was without merit. All systems for allocating resources throw up anomalies.

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.

Allocation Judicial Review 1

Published
by
NL
on 30 March 2008
in Housing law
. 0 Comments

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:

  1. The scheme failed to identify procedures for making social services nominations and the persons by whom decisions are made;
  2. The decision not to make a nomination in the applicant’s case was unlawful in that there were no proper procedures for determining the nomination, issuing reasoned decisions or offering a right of review
  3. The scheme failed to provide a rational mechanism for ensuring that an assessed need for a ground floor property with a garden is given a head start over those with no such assessed need.

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.