Alam v LB Tower Hamlets[2009] EWHC 44 (Admin) is one of those interesting cases that you get in allocations – well, interesting because a council like LB Tower Hamlets should probably know better than to have an obscure clause in its allocations scheme which surely will be challenged sooner rather than later (that it took three years is mildly surprising). It’s also interesting because most allocations cases, like Ahmad, usually turn on the meaning of reasonable preference. This case turned on the meaning to be ascribed to one of the allocations groups in LBTH’s scheme and may be of interest to those in Aweys. Group 2, termed community priority, included “Those assessed by the Council as Homeless under the Housing Act Part 7 and other Homeless households who have an assessed priority need”. Now for entirely separate reasons, I have a passing interest in LBTH’s scheme and that also puzzled me, so good for Robert Latham, who acted for Mr Alam. The problem lies in the extent and meaning of the reasonable preference categories in s. 167(2)(a)-(b).

Anyway, the facts: Mr Alam was found by LBTH to be homeless, but not in priority need. There was no question of intentionality. He took the non-priority need finding to the County Court on appeal but was unsuccessful. He remained in the s.188 accommodation, a guest house. Prior to receiving the s 184 decision letter, he made a Part VI application. LBTH placed him in Group 3 (“Community Mobility”), not Group 2. The problem for Mr Alam was that, in bidding for one bed properties, he would always be outbid by somebody within Group 2 (or Group 1), however much priority he had in Group 3.

LBTH’s argument before Timothy Brennan QC, sitting as a Deputy High Court Judge, was that (a) although Mr Alam was homeless prior to the s 184, he was not homeless thereafter and thus not entitled to reasonable preference; (b) if that was wrong, Mr Alam had a reasonable preference by being placed in Group 3 (and with a high priority within that group). Robert Latham argued that the split definition of Group 2 meant that the first category (ie “Those assessed by the Council as Homeless under the Housing Act Part 7”) referred to the s 167(2)(a) reasonable preference category (People who are homeless within the meaning of Part 7); and the second bit of Group 2 (ie “other Homeless households who have an assessed priority need”) related to some of the s 167(2)(b) categories. The problem with that construction, as the Judge rightly pointed out, was that “substantially the whole of the second category is already contained within the first category” (para 44). An alternative, and if I may say, somewhat wild construction was that the first category reflected s 167(2)(a)-(b), and the second category referred to those with findings under the Housing Act 1985, ss 65(2)/68(2). The Judge preferred the second construction, in my view wrongly, but frankly LBTH really made their own bed here and their subsequent complaint that this meant that all homeless people would be in Group 2 was met with a judicial “yeah, so what; that’s what you’ve said” ([55]). Equally, and more salubriously, he noted that Group 2 applicants would be prioritised on different bases.

The Judge made one important obiter comment at this point ([47]), which is worth bearing in mind:

Neither of the Claimant’s constructions gives any obvious weight to the priority required to be given to those falling within s 195(2) (those who are not homeless, but who are threatened with homelessness which is likely to occur within 28 days). Given the purpose of the scheme in allocating priorities among those who need accommodation, and recognising that decisions about the allocation of housing are unlikely to be made and fully brought into effect within as short a period as 28 days, I would be inclined, if the point arose, to construe ‘homeless’ in this part of the scheme purposively, so as to include those who are ‘threatened with homelessness’ in the statutory sense. However I have not received detailed argument on the position of those who are threatened with homelessness and I do not need to decide the point.

The Judge rejected LBTH’s arguments, although (and with respect) his judgment is not necessarily the model of good structure. But he rejected LBTH’s first submission on the basis, which surely must be correct, that one’s status as “homeless” does not depend on whether one is actually entitled to assistance under Part 7 ([51]). At [15]-[18], he gave short shrift to the argument that Mr Alam was no longer homeless after the s 184 decision, making clear that Mr Alam had no enforceable right to stay in the guest house; temporary accommodation was not accommodation in which it was reasonable to remain; and, if he was wrong on those points (and he probably was), at [17], he said: “I hold that it is indeed necessary to imply into the statutory scheme the qualification that the provision to the Claimant of merely temporary interim accommodation did not involve loss of his status of homelessness within the meaning of Part 7. There may be cases of fact and degree which would dictate different results. I am satisfied that in the present case the accommodation which was made available to the Claimant at Mile End Guest House did not have a sufficient degree of permanence and security to justify a conclusion that the Claimant has lost his status of homelessness by reason of s 175(1)(a) or (b).” At [27], he also made the point, back on the correct path, that

[T]he concept of homelessness does not involve any consideration of whether the individual is intentionally homeless (which the Claimant was not) or in priority need (which the Claimant was not), nor of whether a local housing authority owes him any particular duty to house him consequent on him being homeless (which, as a result of the Claimant not being in priority need, it did not). Those factors are relevant to the existence and extent of the duty which may be owed to him, but not to the question whether he is homeless within the meaning of Part 7.

He went further (and further than he needed to), again in my humble opinion correctly, by saying that the status as “homeless” does not necessarily depend on a formal s 184 decision, but might be raised in other matters such as a Part 6 application – he doesn’t refer to s 183 but that would support his construction. As to LBTH’s second argument, he rightly made the point that if Mr Alam was entitled to be in Group 2 under the council’s scheme, then he should have been placed in it.

Quite a lot was going on here and a lot is at stake for LBTH – it will be interesting to see if they appeal.