Allocation and reasonable preference

The Court of Appeal has ruled that part of an allocation scheme for social housing adopted by a London council was unlawful. Andy Lane examines the judgment.

The case of R (on the application of Lina Jakimaviciute) v Hammersmith and Fulham London Borough Council [2014] EWCA Civ 1438 concerned a challenge to the Council’s allocation scheme in respect of social housing – amended following reforms to Part VI of the Housing Act 1996 (“the Act”) brought in by the Localism Act 2011 – and in particular paragraph 2.14(d) which provided that the following class of persons would not normally even 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."

The case exposed the tensions between the greater freedom given to local housing authorities to frame their allocation policies – in particular section 160ZA(7) of the Act which provides that “[s]ubject to subsections (2) and (4) and any regulations under subsection (8), a local housing authority may decide what classes of persons are, or are not, qualifying persons” – and the more long-standing reasonable preference requirements to be found at section 166A and which include:

(a) people who are homeless (within the meaning of Part VII of the Act);

(b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) of the Act (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3).

Though paragraph 2.14(d) on the face of it may therefore appear to fly in the face of the reasonable preference the Council were required to give to somebody in Ms Jakimaviciute’s (original) position the argument put forward on the Council’s behalf was that there was an important distinction between the question of whether somebody was eligible for registration in the first place under any allocation scheme and their position if they did qualify (when reasonable preference would operate).

The Court of Appeal rejected this approach and in the leading judgment of Lord Justice Richards it was stressed (with emphasis added):

“29. Section 166A(1) requires every authority to have an allocation scheme for determining priorities, and as to the procedure to be followed, in allocating housing accommodation; and section 166A(14) provides that an authority shall not allocate housing accommodation except in accordance with their allocation scheme. Mr Baker argues by reference to the definition in section 159(2) that "allocation" refers only to the end of the process, namely the moment when the authority "select" or "nominate" a person to be a tenant. That may be so but it does not take the Council very far. By section 166A(1) the scheme is required to cover the entire process leading to such allocation: the "procedure" referred to in the subsection is defined as including all aspects of the allocation process. The process starts with the making of an application for an allocation of housing accommodation. The next step in the process is to determine whether the applicant is eligible and is a qualifying person. This strongly suggests that the criteria for eligibility and, more importantly, the qualification criteria are themselves to form part of the scheme: only those applicants who meet the criteria will fall for consideration at further stages of the process.”

In particular and as a result Lord Justice Richards referred at paragraph 31 of the Judgment to the reasonable preference duty applying (again with emphasis added):

“…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 Court put forward one option to the Council if it wished to further its objective and rationale which had been behind the offending paragraph:

“50…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).”

It is clear that the approach adopted by the Council in this instance was not an isolated example and no doubt a number of housing authorities are reviewing their schemes as a result.

Andrew Lane is a barrister at Cornerstone Barristers. He can be contacted on 020 7242 4986 or This email address is being protected from spambots. You need JavaScript enabled to view it..