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03/03/2008

Allocation and cumulative need

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 allocation 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 not 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 case, 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.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

3 Comments

  1. Mark P

    It is difficult to see how those provisions of Newham’s allocation scheme referred to at para 35 could have been thought to have been in any way sufficient to ensure composite assessment of need. Rather, they appear at first glance to be more indicative of a concerted bid to circumvent the duty to afford composite assessment.

    As Lord Justice Richards’ judgment repeatedly states, Part 6 affords considerable discretion to authorities. Surely the more appropriate course would be to grasp the nettle at the outset by exercising that discretion to afford more preference to those s.167(2) categories that, because of local priorities, should be given more of a head start.

    Also, whilst I appreciate that many housing applicants crave simpler waiting list policies (hence the move by many authorities to policies that prioritise applicants in bands) I remain of the view that points systems provide a fairer way of determining priority, given the many varied aspects of housing need typically experienced by households in the greatest housing needs. Good old fashioned points AND choice via bidding anyone?

    However, I do have considerable sympathy for LAs that wish to give greater priority to under-occupying households who are prepared to relinquish much needed family accommodation. It’s a complaint I’ve heard from several authorities. Given the current shortage of larger units, this perhaps deserves serious consideration.

    I’ve heard rumours the government is considering making changes to Part 6. Does anyone know whether the housing minister has yet given any indications as to what any amendments would be likely to consist of, and whether measures to tackle under-occupation are being considered?

    Reply
  2. contact

    Mark,
    First, I agree that Newham’s attempt to deal with multiple need was very far from sufficent. I understand the provisions were introduced in a hurry after a Judicial review application, and are deservedly now confirmed as unlawful.

    The broader issue of a choice based allocation scheme and the ability to ‘reconcile choice and need’ was sadly not taken as a viable ground in this judgment. I understand that there are similar, but not identical issues that have had substantive judicial review hearings recently, so we await those judgments.

    Under-occupation is a Band 1/A priority in a number of allocation schemes that I know of, as it is in Newham’s. And this strikes me as an entirely legitimate exercise of discretion on the part of local authorities, for the reasons you mention. Surely to be encouraged.

    I haven’t heard anything about amending Part VI. Please not Caroline Flint’s workhouse in action?

    I think I feel a general post about allocation schemes and choice based letting coming on, but it may be a while…

    Reply
  3. frednach

    [Deleted by J – (1) you seem to have said the same thing twice; but, (2) I couldn’t understand it on either occasion]

    Reply

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