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.