We reported on the interesting High Court decision in Babakandi v Westminster CC [2011] EWHC 1756 (Admin) (a post-Ahmad challenge to Westminster’s housing allocation scheme) and made a few observations of our own on the judgment, most notably regarding the transparency of allocations schemes. Mr Babakandi had a go at appealing that decision, but was refused permission by Sullivan LJ after an oral application: [2011] EWCA Civ 1397. The refusal is unfortunate given the uncertainty we have previously noted about the required degree of specificity in allocations schemes (which may well become even more significant, I guess, after the Localism Act comes into force, but that’s just a thought). But what is interesting is the extent to which monitoring of the scheme was regarded as so significant by Sullivan LJ.
Anyway, the important thing about Sullivan LJ’s short judgment is that he makes a point about the “common sense” required of the judge in dealing with a challenge to an allocation scheme. The point is that common sense requires the judge not to take a snapshot of whether on a particular day the applicant has been given a reasonable preference but over a period of time. Sullivan LJ says:
It seems to me that if the scheme is to be operated in accordance with the guidance which does permit, in respect of choice-base letting schemes — criteria called in the guidance “advertising criteria” or “restricted labelling” — to be utilised, then inevitably there will be occasions when one particular group to whom preference must be shown will be advantaged somewhat more than others, but provided over a reasonable period as a result of monitoring a reasonable preference is shown to all groups, then that is sufficient to comply with Section 167.
As regards the argument that the scheme lacked transparency because of the system of quotas and targets for each group used by Westminster, Sullivan LJ notes the “trade-off” required between simplicity and complexity; and “… the more sensitive the scheme, it may well be the more complex it will be, and therefore it can be said that the less transparent it will be, but it seems to me that it could not be said that this scheme is so opaque as to be unlawful.”
The other interesting issue taken was that Westminster had unlawfully promoted a number of severely overcrowded households. As Sullivan LJ noted, one of these promoted households subsequently was Mr Babakandi, but the more general point made was that this was precisely what was required by the 2009 guidance in terms of the monitoring of the scheme’s operation, and was an incidental adjustment as a result of that monitoring.
PTA refused.