Court of Appeal holds unlawful part of allocation scheme adopted by council

November 11, 2014

Part of an allocation scheme adopted by a London council was unlawful, the Court of Appeal has ruled.

In Jakimaviciute, R (On the Application Of) v Hammersmith And Fulham London Borough Council [2014] EWCA Civ 1438 the claimant challenged the legality of Hammersmith & Fulham’s scheme, which was adopted with effect from April 2013.

In particular, she took issue with a paragraph - 2.14(d) - that provided that the following class of persons do not normally qualify for registration under the scheme:

"Homeless applicants placed in long term suitable temporary accommodation under the main homelessness duty, unless the property does not meet the needs of the household or is about to be ended through no fault of the applicant. Long term temporary accommodation can include private sector homes let via the council or a housing association under a leasing arrangement, and non-secure tenancies on regeneration estates."

In 2011 the claimant applied to Hammersmith & Fulham under the homelessness provisions of Part 7 of the Housing Act 1996. The council accepted a housing duty towards her under section 193(2) and placed her in long-term suitable temporary accommodation with a private landlord.

Pursuant to the housing allocation scheme then in force, she was also placed on the register for an allocation of permanent accommodation under Part 6 of the 1996 Act.

But when the new scheme came into effect in April 2013, however, she lost her place on the register because she fell within the exclusion in paragraph 2.14(d).

The case turned on the relationship between the council’s powers under section 160ZA(7) of the 1996 Act and the duty under section 166A(3) to frame an allocation scheme so as to secure that reasonable preference is given to certain classes of people, including those who are owed a housing duty under section 193(2).

The claimant contended that the power to set the qualification criteria was subject to the duty to secure reasonable preference and that the exclusion in paragraph 2.14(d) was in breach of the reasonable preference duty.

Hammersmith & Fulham in turn argued that the power to set the qualification criteria was entirely separate from the provisions relating to reasonable preference.

But Lord Justice Richards in the Court of Appeal said section 166A(3) was an elaboration of the duty in section 166A(1) and required the scheme to be so framed as to secure that reasonable preference was given to the classes specified in sub-paragraphs (a) to (e), including those who were owed a housing duty under section 193(2).

He said: “The reasonable preference duty applies on its face to the framing of the scheme as a whole and so as to require the giving of reasonable preference to all those specified, not just to those who are qualifying persons. There is no sensible reason why it should be read as applying only at a stage where the qualification criteria have operated to exclude certain applicants from registration under the scheme.

“Thus, on the natural interpretation of the statutory provisions the setting of the qualification criteria is subject to the reasonable preference duty.”

The judge concluded that Hammersmith & Fulham had gone further than the 1996 Act permitted in providing that people falling within paragraph 2.14(d) would not normally qualify for registration under the scheme.

He added: “I should, however, note that [counsel for the claimant] Mr Westgate's challenge was not to the rationality of the council's overall objective. If those falling within paragraph 2.14(d) have a lesser need for social housing than other people within the reasonable preference classes, the council may wish to consider whether it is possible to reflect that factor in an appropriate banding structure under the scheme in place of the impermissible exclusion effected by paragraph 2.14(d).”

Agreeing, Lord Justice Tomlinson said he regretted the conclusion to which the Court of Appeal was compelled. “For the reasons touched on…., I doubt if either these proceedings have achieved any practical purpose or that the claimant will derive any benefit from our decision. However, if the scheme is unlawful we must so declare.”

Commenting on the ruling, Doughty Street Chambers – whose Ben Chataway along with Martin Westgate QC appeared for the claimant, instructed by Turpin & Miller – said: “The decision will affect around 500 applicants in Hammersmith and Fulham alone and will have to be followed by housing authorities across the country.

“Significantly, the court also rejected the council’s argument that its duty to give a reasonable preference did not even apply to any decision it might make as to who qualified and who did not. If that argument had been accepted then it would have had far-reaching implications because it would have allowed any council to side-step its duty to give preference to vulnerable groups simply by saying that they did not qualify in the first place.”