By Dave
01/12/2013

Allocations and legitimate expectation

In R(Alansi) v Newham LBC, Stuart-Smith J held that, although Ms Alansi had a legitimate expectation that she would remain a priority homeseeker on Newham’s housing register, Newham had not acted unreasonably and in abuse of its power by withdrawing its representation.  It is a case which demonstrates (again) just how hard it is to shoehorn a genuine grievance into a successful JR challenge, doubly so in the context of a local authority allocation scheme.

Ms Alansi had decided to accept an offer of PRS accommodation made by Newham under s 193, Housing Act 1996, in circumstances in which Newham had clearly and unambiguously (as Stuart-Smith J found) represented that she would remain a priority homeseeker (and thus had a chance of an allocation).  This representation was outside the formal terms of the Newham allocation scheme, but was clearly done to induce homeless applicants to accept PRS accommodation.  Around 400 such households were made the same assurance.

Subsequently, Newham changed is allocation scheme, having consulted and done so properly (at least there was no challenge to the process in this JR).  One such change was that Ms Alansi lost her priority homeseeker status.  In essence, the question for Stuart-Smith J was whether that change was an abuse of power.  Without necessarily saying that the judgment as a whole is a tour de force, Stuart-Smith J does make a pretty good fist at identifying and assessing the underlying principles (as well as not accepting Newham’s argument that one should read the relevant representations like any contractual document).

Having accepted that the representation made by Newham to Ms Alansi was clear, unambiguous and unconditional (in the limited sense that it was inconsistent with an implied right to withdraw it on a change of policy), the real question was whether Newham’s decision to withdraw it was proportionate.  Here Stuart-Smith J makes a number of points:

(a) the allocation of social housing is a core political policy area  and Newham “… changed its policy in a political climate for housing that has been altered by central government in material respects by the Localism Act 2011 and its guidance to local authorities” ([42]).  As he subsequently put it: “It is therefore within the area where the Court should be cautious before substituting its own judgment for that of the democratically elected local authority about what is the appropriate balance to strike and when and to what extent it is proportionate to affect individual interests adversely in striking that balance” ([50]);

(b) although it affected just 400 households, all households on the list were affected by the movement on the housing ladder;

(c) if the assurance had been a matter of formal policy, it could have been changed;

(d) It was rational for Newham to regard Ms Alansi as not now having a pressing need for social housing, and she had been given a right of review (Stuart-Smith J appears to have assumed that this right was extra-statutory);

(e) Although she clearly had relied on the assurance, “the question of detriment is more complicated” – she lost rights but gained some.

Newham had, therefore, displaced the prima facie finding that its conduct was unreasonable: “It is better characterised as a proportionate response to a pressing and widespread social problem which struck a proper balance between the competing claims of many different interests” ([51]).

Posted in: Allocation

1 Comment

  1. chief

    Permission to appeal has been refused in this case by Sir Stanley Burnton on the papers and by Fulford LJ at a renewed hearing.

    Reply

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