In R(Hillsden) v Epping Forest DC [2015] EWHC 98 (Admin), McCloskey J held the council’s allocation scheme valid in circumstances which, I must say, did not seem propitious to the council.  The council’s new allocation scheme, which came in to force in September 2013, had a qualification criterion which required applicants to have a continuous residence for three years and, for those already registered, to have two and a half years.  It was argued by the council that there was no “exceptional circumstances” get-out clause, because, apparently, the council “wanted clear rules that left no room for doubt about whether an individual qualified in the first place”.  Now, like Ms Hillsden’s counsel (Jan Luba and Bethan Harris), I would have said that whole criterion was a real problem – indeed, our past notes on this precise issue have argued this too.  So, fair play to Epping – how did they win?  Will it survive an appeal?

Ms Hillsden’s first argument focused on para 7.2 of the scheme.  This paragraph recognises an exceptional circumstances rule, with decision-making delegated to the Director of Housing.  However, the council argued that the scheme, taken as a whole, meant that this exceptional circumstances rule was actually about allocation and not qualification.  The council’s witness statements on this point were disregarded by the Judge: “Had I been prepared to consider them, these aspects of the Council’s evidence would have to be treated with some circumspection given that it was deemed necessary to prepare a second witness statement for the purpose of both clarifying and augmenting the first.  Furthermore, there is a risk that averments of this kind will, inadvertently or otherwise, be self-serving, the more so when they cannot be tested by reference to contemporaneous records and in the absence of cross-examination” ([20] #ouch).

As a pure question of construction, however, Ms Hillsden’s argument was unsuccessful.  The qualification provisions were “framed in uncompromising and unambiguous terms.  They disclose no intention to reserve to the Council any power, or discretion, of relaxation or dispensation.  Their language confounds the contention that they are to be read as if followed by words such as “subject to the exceptional circumstances dispensation contained in paragraph 7.2 above””.

I imagine at this stage that Ms Hillsden would reckon that her claim would have been successful – without an exceptionality rule, surely the scheme infringed the fettering discretion rule because Epping Forest had to close their eyes and ears to Ms Hillsden’s circumstances (which in outline seemed pretty awful).  Not so, according to the Judge, whose close analysis of British Oxygen disclosed the following principle:

A  decision which is the product of an inflexible rule or policy adopted by a public authority governing, or informing, the exercise of its statutory discretion, in circumstances where the statute allows its adoption, is liable to be held unlawful, since the discretion must not be fettered in this way.  The main reason for this, in my estimation, is that decisions of this kind defeat the intention of the statute and do not represent a true and proper exercise of the discretion conferred by Parliament. [29]

However, there was nothing in the 1996 Act which required the council to have an exceptionality provision: “the absence of a residual, or overarching, discretionary provision in the impugned Scheme is not attributable to the erection by the Council of some inflexible rule or policy relating to how it will exercise a statutory discretion. I consider that the legislation did not give the Council a choice in this respect. … I consider that the fundamental duty imposed on the Council was to devise a HAS which accords with the multiple requirements of the statutory regime.  The Claimant’s challenge fails to identify any disharmony or incompatibility in this respect”.

Other public law arguments – irrationality, reference to the Code and previous versions of the legislation – were unsuccessful.

The third ground of challenge seems to me to be a makeweight ground – the argument was that the allocations Code of Guidance required the adoption of an exceptionality clause.  It certainly does say that they should have explicit provision for dealing with such cases (para 3.25) but that was never going to get over the hurdle that it is just guidance to which the council is required to have regard.  The Judge held that Ms Hillsden had not shown – and the burden was on her – that the council had not had regard to the Code.

Although the Judge refused leave to appeal, I think that there are some really important points here which demand an appeal.  There was written argument taken by the Judge on the subsequent decision in the Jakimaviciute JR [2014] EWCA Civ 1438 and second appeal in Nzolameso [2014] EWCA Civ 1383 but neither affected the Judge’s decision.  How does this case fit with Jakimaviciute?  I suspect that there may be relatively simple solutions but they demand rather more attention than was given here.  My sense also is that the Judge was rather more lenient to the Council than, perhaps, some other judges might have been, but that may be unfair.  I certainly think that this judgment appears as something of an outlier in the emerging jurisprudence on allocations post-Ahmad [2009] UKHL 14 and it is important for that reason alone.  (En passant, I thought it interesting that the EU argument run in the successful DHP JR was not run here; although I guess the facts themselves did not raise that point)