Khayyat & Anor v Westminster City Council (2023) EWHC 30 (Admin)

A judicial review by two claimants of Westminster’s allocation policy and its restriction of entry to the housing register to only homeless applicants to whom Westminster had decided it owed the main housing duty.

By the time of the hearing, Westminster had accepted that it owed both claimants the main housing duty (albeit in Ms Ibrahim’s case, the court notes that “the history of the Second Claimant’s dealings with the Defendant is rather more convoluted and marked by circumstances of real hardship.”) However, the start date of both claimants’ registration remained in issue, so the judicial review was not academic.

The central issue was whether Westminster’s allocation scheme was lawful with regard to s.166A(3) Housing Act 1996

In framing their allocation scheme to determine allocation priorities, housing authorities must ensure that reasonable preference is given to the following categories of people (s. 166A(3):
(a) people are who homeless within the meaning of Part 7 of the 1996 Act (including those who are intentionally homeless and those not in priority need)
(b) people who are owed a duty by any housing authority under section 190(2), 193(2) or 195(2) of the 1996 Act (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any housing authority under s.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 grounds relating to a disability, and
(e) people who need to move to a particular locality in the district of the housing authority, where failure to meet that need would cause hardship (to themselves or others).

Westminster’s scheme excluded from the housing register any homeless person to whom the main housing duty was not owed. Part 7 homelessness includes anyone who is homeless as per the s.175 Housing Act 1996 definition.

Westminster argued that their scheme meant that they accepted “a sufficiently large proportion of those for whom the Defendant was to secure a reasonable preference that the Scheme could not properly be said to be “fundamentally at odds with the statutory requirements”. (There were arguments over figures, but it was either 30% or 43% of those applying as homeless in 2020/21.) Westminster also pointed at the shortage of social housing supply and wait times, to argue that it made sense to ensure preference was given to those in greatest need.

The High Court followed R. (Jakimaviciute) v Hammersmith and Fulham LBC (2014) EWCA Civ 1438 (our note) and Richards LJ’s view that

The disqualification effected by (the council’s policy) is fundamentally at odds with the requirement under section 166A(3)(b) of the 1996 Act to frame a scheme so as to secure that reasonable preference is given to people who are owed a housing duty under one of the provisions of Part VII. The great majority of people within that class, far from being given any preference, are excluded altogether from consideration for housing accommodation under the scheme; and they are excluded for a reason that cannot sit with Parliament’s decision to define the section 166A(3)(b) class as it did. It does not assist the council to point to the fact that the only people to whom housing accommodation may be allocated under the scheme are people within the section 166A(3) classes. It is the exclusion of a large proportion of one of those classes that causes the problem. Nor do I accept that the power to effect such an exclusion is inherent in the flexibility allowed to an authority in securing that reasonable preference is given.”

The effect is that

It follows that a local housing authority can adopt a policy which excludes individuals who would otherwise be entitled to receive a reasonable preference (and so to be placed on a housing register) provided it does so by way of “factors of general application”. That is by way of factors which are capable of applying to an individual in any of the section 166A(3) categories (thus a person in any of those categories may be in rent arrears or may have or may lack a local connection). The policy under challenge in Jakimaviciute did not operate by reference to factors of general application and was struck down.

Westminster argued that a policy that did not exclude by ‘factors of general application’ could still be lawful and

that the test is to be seen as whether a given policy operates to exclude such a large proportion of those to whom the Act requires a reasonable preference to be given to amount to an attempt to thwart the statutory scheme. It is his submission that a policy which is not based on factors of general application can be lawful provided it does not operate to thwart the statutory scheme.

Westminster’s argument, the High Court found, had already been rejected in R (Alemi) v Westminster City Council (2015) EWHC 1765 (Admin) (our note).

The test of whether an exclusion was by a factor of general application (for example rent arrears, history of ASB) or not remained the case.

The difference is between a redefinition, in the sense identified by Mr Peacock, which affects all the statutory categories but does not exclude any category and one which affects one or more categories but not others: in my judgement the former is lawful but the latter is not. It is of note that Mr Peacock’s interpretation of the applicable test would have undesirable consequences in practice. It would mean that the lawfulness of a housing authority’s policy would depend on its practical effects. Not only would that give rise to scope for debate but the practical effects might vary over time in the same authority or might differ from authority to authority. Thus identically expressed policies could be lawful or unlawful at different times or in different circumstances.

It follows from my conclusion as to the applicable test that the Scheme is unlawful. It operates to exclude persons from receipt of a reasonable preference by reference to factors other than factors of general application.

In any event, Westminster’s figures showed something other than what they were arguing

Finally, I note that the Defendant’s position also falls down on the figures here. Mr Peacock said that the fact that 30% of the homeless (or 43¼% of those whose homelessness was not relieved during the Relief Duty period) ended up on the Register showed that the statutory purpose was not being thwarted and that a reasonable preference was being given to a significant proportion of those in the reasonable preference categories. I draw a rather different conclusion from these figures. They show that even on the most favourable view for the Defendant only a minority of those in the reasonable preference categories were being given a reasonable preference. As Mr Nabi said 100% of those homeless who were not in priority need were excluded. Thus even if regard is to be had to the effect of the Scheme it clearly operated contrary to the purpose of the Act.

Westminster’s allocation scheme was declared unlawful. The precise nature of other relief was to follow agreement or submissions.

Comment

I am genuinely bewildered as to why Westminster fought this one. The scheme looks obviously unlawful in its operation.  A reasonable preference for Part 7 homeless is not given where 70% or 57% of the group is excluded, but beyond that, even if numbers affected are relatively small, one doesn’t get to operate a scheme which is only a little bit unlawful, such a little bit you can’t even notice the unlawfulness. And then the only argument advanced as to why it might not unlawful be was one that had already been tried by Westminster and failed years ago.

The allocation scheme is currently under review (after the change in the ruling party in Westminster).