R (Jakimaviciute) v LB Hammersmith and Fulham  EWHC 4372 (Admin) [Not generally available yet. I’ve seen a transcript]
This judicial review permission hearing raises very significant issues for post Localism Act Council allocation policies. The central issue is the Council’s ability under the Act to set an allocation policy that includes ‘qualifying classes’ and excludes other classes. Housing Act 1996 (as amended by Localism Act) s.160ZA states:
(7) Subject to subsections (2) and (4) and any regulations under subsection (8), a local housing authority may decide what classes of persons are, or are not, qualifying persons.
Meanwhile s.166A(3) provides:
As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to—
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); and
(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).
The scheme may also be framed so as to give additional preference to particular descriptions of [people within one or more of paragraphs (a) to (e)] (being descriptions of people with urgent housing needs).
Now, H&F’s allocation scheme set out ‘classes of persons who will not normally qualify for registration to participate in the allocation scheme’. These classes include, at paragraph 2.14 (d):
“Homeless applicants placed in long term suitable temporary accommodation under the main homelessness duty, unless the property does not meet the needs of the household or is about to be ended through no fault of the applicant ….. “
Ms J, the Claimant, fell into this class, having been placed in a private sector short hold tenancy as temporary accommodation after H&F accepted the full homeless duty. H&F refused to add her to the housing list. Ms J brought a judicial review claim alleging unlawfulness as she was not being given a reasonable preference as a homeless person – s.166A(3).
Before D Gill, sitting as a Deputy High Court Judge, the renewed oral application for permission did not go well.
9. Mr Chataway [for Ms J] submitted that if the discretion provided for at Section 160ZA (7) is as wide as contended by the defendant, that would mean that it would be open to any local authority to exclude anybody to whom they would otherwise have an obligation to give a reasonable preference. That submission in fact emphasises the fact that the intention was to give the local authority a wide discretion to decide, in the light of the housing shortages and the demand for properties, how to go about discharging their duty. There is nothing arguably irrational in the public law sense in that concept, although I make the point, for the record, that it has not been said on the claimant’s behalf that the defendant’s allocation scheme is irrational.
10. When one steps back and looks at how these relevant provisions are organised, it is clear, it seems to me, that Section 160ZA sets out the provisions which confer on the local authority the duty and power to decide who are qualifying persons. Section 166A sets out the principles to be followed in setting up the allocation schemes, in particular the priorities to be given amongst the qualifying persons.
11. Since this key issue is determinative of this renewed application for permission and I have decided that it is unarguable, I do not need to go on to consider the other arguments. So permission is refused.
What was decided then, is that the reasonable preference ‘priority’ only applies to people who are on the list. And as Ms J was in a class excluded from the list, she didn’t even get to the point where reasonable preference was an issue.
I understand that permission to appeal to the Court of Appeal has been filed.
Yes, you have got that right. If this decision was correct, then it would be entirely possible for a Council to exclude any and all homeless applicants, whatever duty was owed, from the Part 6 housing allocation list. The fact that a reasonable preference is to be accorded to a homeless person in the meaning of Part 7 is neither here nor there, as they would never get to the point where issues of priority within the list would apply.
It is not just H&F, other councils have pulled similar wheezes on excluding some homeless, whether intentionally homeless or in ‘secure temporary accommodation’ (something of an oxymoron). Barnet is one (and apparently H&F thanked Barnet for their assistance in devising H&F’s allocation policy. Given that Barnet’s published allocation policy appears to believe that Barnet is in Wales, one would have thought any borrowings should be carefully considered).
But, the decision is far from unproblematic. For example, the “Allocation of accommodation: guidance for local housing authorities in England” published by DCLG to accompany the Localism Act amendments coming into force contained the following, under ‘Qualifying’:
3.20 In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in s.166A(3) to give overall priority for an allocation to people in the reasonable preference categories.
3.21 Housing authorities should avoid setting criteria which disqualify groups of people whose members are likely to be accorded reasonable preference for social housing, for example on medical or welfare grounds. However, authorities may wish to adopt criteria which would disqualify individuals who satisfy the reasonable preference requirements. This could be the case, for example, if applicants are disqualified on a ground of anti- social behaviour.
The difficulty here is that the Guidance both acknowledges that there is a potential power to exclude ‘reasonable preference’ people from the housing list as a non-qualifying class, even while stating that Councils should avoid doing so. The question, then, is how far H&F (and Barnet et al) could be said to have had regard to the Guidance in formulating their schemes and non-qualifying categories.
Oh brave new world. It will be very interesting (not to say very important) to see how this or a similar case goes on appeal (or JR if permission given on appeal).