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A lack of candour over a lack of discretion

11/02/2024

Montano, R (On the Application Of) v London Borough of Lambeth (2024) EWHC 249 (Admin)

A short note on this judicial review.

Ms M had requested that Lambeth exercise a discretion to back date her entry on the housing register (for greater priority) to the date of her homeless application. Lambeth denied that it had any discretion to do so under its allocation policy.

Ms M brought this present judicial review, Lambeth having failed to respond to pre-action protocol correspondence.

Ms M filed evidence from her solicitor and from Housing Action Southwark and Lambeth (HASL) providing evidence of other occasions where Lambeth had indeed back dated housing register entries. In response, Lambeth dislcosed a document (not previously disclosed) called “Guidelines for Officers: Exercising Discretion under the Housing Allocation Scheme 2013” but didn’t answer any questions put to it about this.

The High Court found:

i) Lambeth’s scheme did allow a discretion on the registration date, although not mentioned specifically, via a discretion to add additional priority to homeless persons, and via a reference to removing a joint applicant being classed a s a new application that may (not shall) result in loss of priority by registration date.

ii) Lambeth had not met its duty of candour to the court.

In its Summary Grounds, the Defendant categorically asserted that it was a “hard fact” that there was no discretion to change the date of registration. It made no mention of cases where the date of registration had in fact been backdated. In response, the Claimant filed detailed evidence demonstrating that in a number of cases the Defendant had exercised a discretion to backdate the registration date. In my judgment at that point the Defendant’s duty of candour and co-operation operated such that it should have filed evidence to assist the court with a “full and accurate explanation” in response. Instead, it responded simply by way of assertion in its Skeleton Argument. It did not answer any of the reasonable requests made by the Claimant for clarification of Ms Ojukwu’s statement which I have referred to earlier in this judgment. Equally unsatisfactorily, it failed to serve the Guidelines until prompted to do so by its eleventh-hour application to the court for permission to take part in these proceedings.

That a public authority is hard pressed and has scarce resources cannot excuse it from compliance with its duty of candour and co-operation. Notwithstanding these regrettable omissions by the Defendant, I am however satisfied that I have been able to determine the claim fairly on the evidence that has been before me.

Claim allowed, and a declaration made that Lambeth had acted unlawfully in failing to consider their discretion in response to the claimant’s request.

 

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.

1 Comment

  1. Princess

    I have been going through similar with Lambeth. Have been asking for my housing file for 2 years & even made a complaint to the information regulator. My solicitor keeps raising appeals in County which they ignore us for months then 2 weeks before do something that renders it academic. I’m tired of Lambeth abusing the law.

    Reply

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