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 Southwark had adopted an unpublished administrative scheme that did not accord with their published criterea.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.
Hi Nl,
This is totally off topic, I’m afraid, but I am having horrendous problems with my blog – its been hijacked by a guy called Paul Masterson, and for the moment I can do nothing about it; my url has therefore changed – it is no longer lawminx.blogspot.com but minx610.blogspot.com, so you’ll have to ammend your link to me, Im afraid!!
(*rushes off, stressed, to tell everyone else of this catastrophe*!!!)
@lawminx: Done. I saw the squatter had moved in – same charmer as took over lawyer-2-be, I think.
Lovely to have you back.
To Nearly Legal, Mr Giles Peaker and others.
I thank you for your invaluable posts and summaries of Judgements.
I have found that not all law centres have either the time or means to help everyone, in particular, those who appear to be in a position to help themselves, which at the best of times is discriminatory as it is based on face value and other things. But there is also the matter of that those who are eligible for legal aid seem to get legal representation, but those who despite also being eligible for legal aid, do not receive it. This is also discriminatory.
I have found Nearly Legal Summary Judgments very very helpful, more helpful than I can say.
After reading quite a lot of summary judgments, which are helpful, they simply skim over the surface as it needs to be more detailed as to the individual needs of the applicants, but I am aware that this cannot be disclosed due to safeguarding and confidentiality. For example, we know that Ms Faarah v Southwark 2008 is a Ms. But that is all we know, for me, as I do not have access to more detailed information. So, there is the issue of why Ms Faarah in particular was excluded and why she was not treated fairly and indiscriminately by Southwark. I believe that discrimination plays a major role in the way that Local Council’s treat housing applicants. For example, former asylum seekers seem to be able to obtain legal aid more easily than their white english counterparts. why is this? Those with any ‘hint’ of previous offending or drugs and alcohol in young males and older males have the least chances, despite that most of them have not been proved and no solid evidence. Take Francis v Kensington, for example, this stated that ”he had been ACCUSED of domestic violence.” [removed by NL ] This is also discrimination, either way, it is discrimination.
After spending quite a long time dealing with my similar cases, I have also noticed a patter, which no doubt you have also noticed.
There are, as you are already aware, about 5 groups of people who have a battle in obtaining social housing accommodation. These are not in any particular order of priority.
1. Families or single parents with children aged under 5 and or age under 16
2. Care Leavers any care leavers
3. Men being accused of DV or other things such as drugs and alcohol ”abuse” or normal use?
4. same sex relationships
5. former aslyum seekers or immigration matters
6. overcrowded families with children
7. former prisoners, ex offenders, drug and alochol users,
8. army personnel or former army personnel
9. people with mental illness
10. people with disabiltiies and or serious health conditions that require care or certain types of accommodation
11. older persons of pension age
12. I do not know what category that trans people fit but I am not in this category, but perhaps this is an issue, I am not sure, it is not relevant to me
13. people of minority ethnicity, such as black, african, carribean, and asian people from different asian ethnicities
I think that is everyone, except persons such as yourself and myself, who do not fit into any of the above categories, but are discriminated against on the grounds that are often wrong that we are or should be able to find our own properties and accommodation and represent ourselves in any legal cases. Therefore, I am often excluded from public services.
I appreciate your summaries and that without those, I would have been even more in the dark.
If Local Authorities can be honest with applicants, instead of ignoring them and fobbing them off with lies and maladministration, it would help applicants such as myself a lot in understanding their actions or inaction, as we are not entirely stupid but to treat persons such as myself as stupid doesn’t help either the Local Authority or me. For that, people such as myself end up having to take out a Judicial Review just to obtain some clarity. But deep down we know it is discrimination under the Equality Act 2010, being a single white female is one major problem but does not require priority. Is it therefore ok for single white english females to be left defencless on the streets? No. it is not ok and it should not happen. There needs to be more assistance and help for excluded persons.
kindest regards
reader
Hi
Access to social housing is governed by the local authority’s allocation scheme and some statutory requirements. They are primarily based on criteria of housing need. While the structure of a scheme can sometimes have a discriminatory effect – and schemes have been found unlawful in that regard, for example local connection requirements in regard to those fleeing domestic violence – any intended ‘discrimination’ is based on housing need and personal situation.
As housing need is not a protected characteristic, there is no discrimination in law in setting priority for those in greatest housing need.
As for legal aid – if you are eligible for legal aid, and have a matter that is within the scope of legal aid (little is, these days), then you can get it. Whether you will be able to find a legal aid solicitor able to take the matter on is another matter, as there are very few left. The rate of legal aid is so appallingly low that people just can’t make a legal aid practice work economically.
Everybody therefore finds it very difficult to get representation under legal aid. The fact that you have found it hard to get representation is not discrimination, it is simply the case that it is very hard for everyone.
As to your speculations about Francis v Kensington, I’ve taken that out. We don’t allow unfounded speculation about people on the site.
Sir, may I draw your attention to the various local authorities, in London, for instance?
There is Greater London and Inner London.
All Local Authorities, eg, Councils and District Councils are able to make their own policy but I have found some to be contrary to Housing Legislation.
I received one email once from a Local Authority, in declining my application that “We can choose who we want to live in this area.”
What would you make of that statement?
In addition, Local Authorities have ‘different’ Policies created by the Local Authorities themselves.
Why can’t the Government say that all local authorities should have exactly the same policy, so that one allocations policy is not different to any other.
In the summary judgements I have read, such as Kensington, Southwark, Newham, Barking & Dagenham, and so on, all have different allocations policies and schemes and some of them are written in a very poorly arranged in an incomprehensible way, which sometimes deliberately conceals their real aims and objectives.
In one Policy for example, it says that ””Councillors” and their Families can apply to the Housing Register and receive direct Social Housing lets”, placed at a higher priority above others. This is an unfair way. At times I can understand their reasons but at other times, I felt that Councillors should be excluded from obtaining high priority social housing above those in real need such as families who are obviously overcrowded.
I am not sure what the correct term is for ALL Local Authorities to have the same allocations policies, that they should not differ from one local authority to the next. This is what the Law actually says, but the current way the allocations policies and schemes are created are designed against certain groups.
If all allocations policies and schemes are the same or have exactly the same published, it will help applicants or home seekers from the beginning. It is normal for someone to look for a home or somewhere to live and if they feel that their rights statutory rights are being impinged, they have statutory right to make a court claim. This also in the end does damage what could have been potentially a very good relationship between the applicant and the local authority in question.
thank you
Local authorities can have their own allocation policies in order to respond to the specifics of housing need and available accommodation in their area.
This is not in itself discriminatory as it affects everyone in that area.
With regard to the councillors, I can see how a policy might reasonably make clear that councillors are not excluded from the register, simply by the fact of being councillors. However, if they were awarded higher priority simply on the basis of being councillors, that would appear to be arguably unlawful. Which local authority is this?
All allocation schemes have to be published.
There is no statutory right to housing.
In a situation where social housing is a scarce resource, it is inevitable that those with lower housing need will lose out.