R (on the application of A) v Ealing London Borough Council (2015) QBD (Admin) (Patterson J) 16/12/2015 (Not on Bailii yet, note on lawtel)

Back in August, Ealing’s allocation policy was found to be unlawful in HA, R (On the Application Of) v London Borough of Ealing [2015] EWHC 2375 (Admin) (our note). In fact it was found to be very unlawful, on four separate grounds, specifically on the operation of the residence test.

Ms A then asked Ealing for confirmation that she would be put on the housing register. Silence from Ealing. Ealing did, however, file notice of an application for permission to appeal. But without also applying for a stay of the decision.

The box that Ealing didn’t tick

When Ms A again sought confirmation that she would be added to the register, Ealing replied saying that it did not intend to remove the residence requirement pending the application for permission to appeal, and that Ms A’s application had been reconsidered and there were no exceptional circumstances.

Ms A brought judicial review proceedings, seeking to quash those decisions and a mandatory order that she be added to the register. Ealing sought a stay of these proceedings (not the original JR decision).

Ealing apparently argued that a stay should be granted on these proceedings, notwithstanding that they hadn’t actually applied for one with the permission to appeal, because the first JR decision would mean significant changes to the allocation policy if upheld, that would require time and wider consultation. It would not be satisfactory to have to have an interim policy.

This was not very successful.

The Court held that:

As things stood, Ealing’s allocation policy was unlawful. No stay had been applied for with the permission to appeal application. The present application was extremely late, which would be surprising if the difficulties and complexities were as real as Ealing argued. Ealing’s inaction was to be considered in applying the test of whether irremediable harm would or could be caused if no stay was granted, (Department for the Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 257). Ealing could have introduced an interim policy, so any harm was remediable. Stay refused.

Ealing’s latter decisions on Ms A’s application to join the register, and ‘exceptional circumstances’ or lack of them, was made in reliance on the very policy that had been found to be unlawful. This was a blatant misdirection and clear error of law. Further, the belated refusal of the application on the basis that Ealing had applied for permission to appeal was erroneous.

Both decisions quashed. Mandatory order not granted as the scrutiny of the facts was not for the Court. Ealing to make a fresh, lawful, decision.