One of the key things that choice-based lettings is designed to achieve is openness and transparency in housing allocation (or lettings, if you prefer). It does so mostly by using a relatively crude mechanism of determining priorities in and between bands/groups/classes: waiting time. In the early schemes, waiting time could be nobbled by adding periods in cases of urgent need through the use of priority cards etc, but this failed the transparency test (see the 2008 CoG).
In R(Kabashi) v LB Redbridge [2009] EWHC 2984 (Admin) (but only just arrived on Baili, honest), Redbridge got away with (and that’s the best way of putting it as far as I’m concerned) a policy of amending the effective date when an applicant’s needs were reassessed. In other words, rather than use the original date of application as the effective date, Redbridge used the date of reassessment. In Ms Kabashi’s case, her honesty, having had a reassessment from a three bed to a two bed need after her brother left the household, lead to her losing four years worth of waiting time. That was the clear effect of the policy properly applied.
Ms Kabashi’s case, however, fell into the Ahmad (links to our note) black hole of rationality challenges to allocations schemes and her claim to judicial review was refused by Judge Anthony Thornton QC. First, Redbridge had a (kind of) answer to the claim. They had followed the policy documents and 2002 CoG in setting up their policy. Second
The particular provision complained of was introduced because it was regarded as unfair to allow those who changed categories to take their place in the waiting list of the changed category at a point in the list which corresponded with their place in their previous category. Those whose place in a list was adversely affected by such a move would perceive any such interloping of applicants into their list as amounting to both queue jumping and as taking an unfair advantage of others in that waiting list. Moreover, experience had shown that a provision allowing the transposing of an effective date from one list to another encouraged queue jumping. ([10]).
The unfairness to Ms Kabashi was not mooted by the court.
Then, there was the refusal of permission in R v Lambeth LBC ex p Yemlahi [2002] EWHC 1187, a case on similar facts, in which Sullivan J held that “It is for the Council to devise the structure of the scheme. A scheme which, inter alia, seeks to prevent leap-frogging is not in principle unreasonable”. Although that case concerned redating where the applicant sought larger accommodation, Judge Thornton felt that, in light ofAhmad, “I do not see how it is any longer possible to contend that the upwards movement in the Yemlahis’ requirements were such that their case was to be treated differently from Ms Kabashi’s case with the downwards movement in her requirements. The arguments based on irrationality are similar in both cases” (at [13]).
Judge Thornton then roundly refused to open up Redbridge’s policy for examination further noting that there was no “clear cut way” to determine whether Ms Kabashi’s application had been significantly delayed (cf, though, his observation at [9] that “All that can be said is that it is reasonably predictable that Ms Kabashi’s overall waiting time for permanent accommodation may have been set back, possibly by an appreciable period of time, … . However, the possible set back and its possible length are not capable of being assessed or quantified” – in parenthesis, one might ask how Redbridge are able then to comply with their s 167(4A)(a)(ii) duty)). Even if it had been, the scheme would not have been irrational because there were good reasons given by Redbridge for its support.
An unfortunate day at the office for Nik Nicol for Ms Kabashi; in my view, an even more unfortunate day at the office for Judge Thornton. However, what this case does is to demonstrate just how far is the baleful influence of Ahmad.
The one thing that I thought could be salvaged from Ahmad was the importance of waiting time in a Part VI assessment where a policy provided for it. This is because of what Neuberger says at 52:
“The fact that an applicant whose household includes someone who satisfies one or more of the section 167(2) factors has had to wait in his present unsatisfactory accommodation for a long time appears to me to be a factor which a reasonable authority could regard as very significant. It also has the advantage of being quantifiable, transparent and hard to manipulate.”
In other words, waiting time can compensate for the downfall of the composite assessment.
I can understand the logic of say, Westminster, who reset waiting time if you are moved from Band C to Band A because of potential unfairness to existing Band A applicants.
I don’t see how Redbridge’s argument about unfairness could be relevant to downsizing where no s.167 criteria are in play.