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Too soon for a reasonable preference

Montero, R (On the Application Of) v London Borough of Lewisham (2021) EWHC 1359 (Admin)

This was a judicial review of LB Lewisham’s allocation scheme, and specifically of the operation of the 5 year residence requirement for eligibility to join the housing register and its relation to the ‘reasonable preference’ given to overcrowded households.

Ms Montero, her husband and children had moved to Lewisham in June 2018, having lived in Southwark. The family (with three children, two sons aged 16 and 14 and a daughter aged 7) occupied a private rented flat with two bedrooms and a combined kitchen-living room. She applied to Lewisham to be on the housing register in July 2019. At that time there was another couple living with them in the flat. Lewisham refused on the basis she did not have 5 years residency. Ms M sought a review in December 2019, by which point the other couple had left, but the family remained overcrowded by one bedroom under the terms of Lewisham’s allocations policy. The review was negative, and Ms M began the present judicial review in September 2020.

Lewisham’s allocation scheme stated

“2.2.2 If you do not have a local connection with Lewisham
If you do not have a local connection with Lewisham, your application will be disqualified for a period of 6 months from the date of our decision.
Local connection means that:
– You are currently resident in Lewisham and have been resident for a period of 5 years
– The Council have accepted that they owe you the main housing duty under section 193 of the Housing Act 1996 (as amended by the Homelessness Act 2002) and you have been placed in temporary accommodation by the Council;
– You need to move to Lewisham for work, and will suffer hardship if you cannot move:
– You work in Lewisham and need to move in order to enable you to continue working in Lewisham; or
– You need to move to Lewisham to take up an offer of employment in Lewisham; and
– In either case, the work is not short-term, marginal or ancillary or voluntary work; or
– You give or receive care or support from a family member who is already normally resident in Lewisham. …
If you have recently left prison or other institution, we will consider whether or not you have a local connection bearing in mind where you were living before you were imprisoned or institutionalised and whether you have family and other connections in the Borough.
We will ask you for evidence of your local connection with your application. This may include proof of residence, evidence from your employer or a social care assessment.

There was an ‘exceptional circumstances’ clause giving Lewisham discretion to override this requirement

And on reasonable preference

Section 2.5 sets out the criteria by which applicants are assessed as falling into three priority bands: Emergency, High Priority and Priority. Band 1 (Emergency Priority) includes, for example, applicants whose need is urgent because unless they are rehoused their life will be in danger, or the welfare of any child within the household will be seriously prejudiced; and applicants currently in an NHS hospital who cannot leave because they have no suitable accommodation elsewhere and need a specially adapted home due to their medical condition. Band 2 (High Priority) includes, among others, certain persons threatened with homelessness; applicants who unless rehoused will suffer from a serious physical or mental illness resulting from their present housing circumstances; and households who are “seriously overcrowded” (two or more bedrooms short) in settled accommodation. Band 3 (Priority) broadly covers applicants within the section 166A(3) reasonable preference categories, insofar as they do not fall into a higher Band, including households who are “overcrowded” (one bedroom short) in settled accommodation.

Ms M argued that:

“it is unlawful for a scheme to disqualify persons falling with a reasonable preference category, based on a past residence rule, thereby giving those persons no preference at all”. (Following on from R (HA) v Ealing LBC (2015) EWHC 2375 (Admin) (our note) ).

Ms M argued “that although the objection in HA was that a person owed the main homelessness duty was excluded, whereas in the present case Lewisham’s scheme provides an exception for such persons, the same principles apply to applicants in any other reasonable preference category e.g., here, applicants in overcrowded housing.”

Further, Lewisham’s failure to exercise its discretion on exceptional circumstances was Wednesbury unreasonable, in view of the unlawfulness of the exclusion.

And lastly, that Lewisham’s interpretation of its own ‘6 month rule’ on disqualification was unlawful, in that Lewisham continued to apply disqualification until 5 years residency was met.

On disqualification and reasonable preference, the High Court held:

It is clear from Jakimaviciute (R(Jakimaviciute) v Hammersmith & Fulham LBC [2014] EWCA Civ 1438 – our note), in particular, that the power to set disqualify criteria is subject to the reasonable preference requirement. It does not, however, follow that there can be no disqualification of any person in a reasonable preference category. That would in substance be inconsistent with Watters, where it was held permissible to refuse to allocate housing to a person with substantial rent arrears, even though that person fell within a reasonable preference category.

Equally, reasonable preference does not mean that every person in a reasonable preference category must have priority over every person who does not. It is permissible for particular groups of applicant falling outside the reasonable preference categories to be given greater priority than persons within the reasonable preference categories, provided that the former do not dominate the scheme at the expense of the latter (see Lin v Barnet LBC, above §§ 42-43). The defendant’s scheme in the present case includes some groups, outside the statutory reasonable preference categories, who are given priority in this way: including council tenants with an urgent need to move because their homes are due to be demolished in the next 24 months, and certain council tenants living in homes larger than they need or with special adaptations which they do not need.

Jakimaviciute concerned exclusion from registration of homeless applicants in suitable temporary accommodation, which was found to be an attempt to thwart the statutory policy of reasonable preference for homelessness. It was not, as in the present case,

a rule excluding individual applicants by reference to a factor of general application, namely local connection, of the kind which the Court of Appeal in Jakimaviciute in principle considered to be acceptable. Further, the criterion of local connection is a factor with legitimate relevance to housing allocation, and is one which the December 2013 statutory guidance quoted earlier urges housing authorities to adopt.

On HA v Ealing, the High Court decided not to follow HA, insofar as directly relevant, as not persuaded that HA was right:

Goss J in HA accepted in principle that residence conditions were not unlawful per se and could be applied in cases involving reasonable preference (§ 19). However, he concluded that Ealing’s residency requirement was unlawful because such a requirement “must not preclude the class of people who fulfil the “reasonable preference” criteria” (§ 23). The latter statement must, I think, be interpreted as meaning that a residence requirement must not exclude any person falling within a reasonable preference category (since there will clearly have been many people in the relevant reasonable preference category whom Ealing’s resident requirement did not exclude). I therefore understand Goss J to have held that a residence requirement imposed as a qualification provision pursuant to section 160ZA(7) cannot lawfully apply to persons within a reasonable preference category. On that basis, I do not consider that HA is distinguishable from the present case, and I should therefore follow it unless convinced that it is wrong (R v Manchester Coroner ex p. Tal (1985) QB 67, 81; Willers v Joyce [2016] UKSC 44 § 9: “puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so.”).

It is not clear to me how, if so understood, the conclusion reached in HA can be reconciled with the approach taken in Watters (rent arrears), or the Court of Appeal’s recognition in Jakimaviciute that reasonable preference does not preclude rules excluding individual applicants by reference to factors of general application such as lack of local connection or being in rent arrears: save, perhaps, on the unsatisfactory basis that such rules must not merely include an ‘exceptional circumstances’ proviso but actually require specific case by case consideration of each would-be applicant’s particular facts (as to which see § 69 above). Regrettably, therefore, I am driven to the conclusion that, in so far as HA holds that a residence requirement imposed as a qualification provision pursuant to section 160ZA(7) cannot lawfully apply to persons within a reasonable preference category, it is incorrect. I do not suggest that the outcome of HA was incorrect on the facts: it may be that the residency condition in question did not provide reasonable preference to the extent that it applied to homeless persons fleeing domestic violence, and in any event Goss J held the policy to be unlawful on several other grounds.

(WattersR v Wolverhampton MBC, ex p. Watters (1997) 29 H.L.R. 931 (CA), was an early ‘reasonable preference’ case in which the Court of Appeal held that an applicant within a reasonable preference category had been lawfully refused an allocation of housing on the basis that she owed rent arrears.)

This ground therefore failed, as did the argument that the discretion should have been exercised, as the only ground advanced as ‘exceptional circumstances’ was that Ms M was in a reasonable preference category, but disqualified. Being in a reasonable preference category did not require the disapplication of the residence requirement.

On the interpretation of the 6 month ‘disqualification’ clause, Ms M’s interpretation was rejected:

In my view the clear objective of § 2.2.2 is to disqualify persons lacking a “local connection”, and to treat 5 years’ residence in Lewisham as the basic benchmark for such a connection, consistently with the statutory guidance quoted in § 11 above. The Claimant’s interpretation would mean that ‘local connection’ in substance required only 6 months’ wait after making an application to join the register, and the 5-year criterion referred to in § 2.2.2 would be virtually redundant. That cannot be what the framers of the Scheme intended.

The natural meaning of § 2.2.2 in my view is that ‘local connection’ is prima facie defined as 5 years’ residence, subject to the alternative criteria set out in the ensuing subparagraphs (e.g. persons who need to move to Lewisham for work and will suffer hardship if they cannot move). The effect of the provision for a 6-month period of disqualification is not that the 5-year criterion then falls away upon a second application made at least 6 months after the first. Rather, it is that no fresh application can be made at all, for example relying on alternative grounds, within 6 months of the decision on the first application. The 6-month rule may thus be regarded as discouraging excessive repeat applications. Both the 5-year criterion and the 6-month rule form part of the qualification criteria which the Defendant has put in place pursuant to section 160ZA(7).

The claim was dismissed.

Comment

Looking back to our post on Jakimaviciute from 2014, I found exactly this issue – the impact of a general residency requirement in relation to reasonable preference categories – being played out in the comments. The view was expressed, with which I apparently agreed, that the question was likely to be whether a residency requirement had a unjustified disproportionate impact on or tended to exclude those in a particular reasonable preference category, rather than whether reasonable preference categories were impacted at all (along with everyone else).

And so, I think, it has now largely come to pass. (Not that I can take any credit at all for foresight, I’d entirely forgotten that conversation.)

Even HA maybe makes more sense considered as a discrimination or unjustified disproportionate effect/exclusion case, with the elements of the judgment that deal with ‘reasonable preference’ categories in general perhaps not being the most firmly shored up (in a judgment that found plenty of other grounds for the allocation scheme and decision to be unlawful).

No discrimination grounds were advanced in this case (understandably, as on the facts it is not easy to see any), so, as a full on attack on residency requirements, this does give some clarity as to the boundaries of challenge to such schemes – at least and unless it goes to the Court of Appeal.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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