In R(Alemi) v Westminster CC [2015] EWHC 1765 (Admin), which has been widely reported already (eg here; and all over my twitter feed), HHJ Blair QC found that Westminster’s allocation scheme was unlawful in disbarring successful homeless applicants (other than a small group) from bidding for social housing in their first 12 months on the list.  During that period, Westminster would be seeking to find a suitable private rented sector property.

The reasons for this disbarring, which HHJ Blair QC found to be practical and rational, were “To strengthen the message to applicants and to give Housing Options time to assess whether applicants will be able to manage in the psr (sic) and to find them a suitable property …”(report to cabinet, para 3.7.4; I think that the message to be strengthened was that Westminster was taking advantage of the Localism Act provisions to discharge homelessness duty in the prs).  The idea was that households coming from the private sector could return to the private sector, so that “… the long term effect may be that those waiting for a social tenancy are more vulnerable than those who currently hold social tenancies” (para 3.7.6).  The question at issue, therefore, was whether the relevant section, s. 166A(3), Housing Act 1996, lawfully authorised Westminster’s disbarment.  that subsection reads:

(3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to –

[(b) people who are owed a duty by any [LHA] under section 190(2), 193(2), or 195(2)…or who are occupying accommodation secured by any such authority under section 192(3);] …

(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include –

(a) [finances to meet housing costs]

(b) [behaviour affecting suitability as a tenant]

(c) [local connections with the LHA’s district]

Ms Alemi was evicted from her private rented accommodation as a result of the benefit cap.  She was owed the full housing duty under Part 7, Housing Act 1996, owed to successful homeless applicants.  She was caught by this disbarment.

HHJ Blair QC interpreted the reasonable preference provisions as requiring such preference in the allocation of social housing.  Thus,

The differentiation which is permitted by the legislation (and which the Courts should leave to the wide discretion afforded to a LHA and the democratic process) is restricted to adjusting the relative priority of sub-groups by reference to features which do nonetheless afford them some opportunity to be allocated social housing within the LHA’s current cycle, however remote that possibility might be. ([28]; original emphasis)

On that basis, Westminster’s arguments fell to dust.  They argued that Ms Alemi had been given reasonable preference because she had been given the relevant points, she was in a priority group and the date of her acceptance was the date of her registration.  But, if as HHJ Blair QC held, s. 166A(3) was about reasonable preference for an allocation, then those points were neither here nor there.

Secondly, they argued that, instead of a snapshot in time, reasonable preference had to be measured over a period of time.   This failed because the period of time was said to be arbitrary: “It is unrelated to the statutory purpose of allocating social housing and does not pretend to be designed so as to manage relative priorities within the group(s)” ([31]).  Thirdly, because the duty in s. 166A(3) is a target duty, the fact that around 15 per cent of the register are so disbarred for a limited period did not mean that the classes in subsection (3) as a whole are not accorded reasonable preference and subsection 5 was prayed in aid on this point.  That  argument failed for the same reason as the second argument – ie that there was “… a whole sub-group which is altogether excluded from the potential of being allocated social housing for 12 months.  They have no preference” ([32]).

I have to say that, at the risk of being controversial, Westminster’s arguments are absolutely in line with the House of Lords judgment in Ahmad v Newham LBC and that they were not successful in this case demonstrates what I think is becoming a little clearer, that (a) the lower courts are subtly narrowing that judgment, and (b) it may well take another UKSC decision to give clarity.  Now don’t get me wrong: undermining Ahmad is undoubtedly key to social housing justice – and Jan Luba and Tim Baldwin, who both acted for Ms Alemi, got the right outcome – and this case just goes to show the point of judicial review as speaking “truth to power”.  But, of course, it is really a victory in name only – apparently, it takes 7-10 years before a household is allocated social housing.

It will be interesting to see if Westminster appeal.