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High Court upholds use of past residence rule to disqualify housing applicants

The London Borough of Lewisham’s requirement for a local connection in its housing allocation policy is lawful, the High Court has ruled.

In Montero, R (On the Application Of) v London Borough of Lewisham [2021] EWHC 1359 (Admin) Mr Justice Henshaw rejected a judicial review case brought by the claimant that her application should have been accepted.

Ms Montero challenged what she alleged was Lewisham’s failure to have a housing allocation scheme that complied with section 166A(3) of the Housing Act 1996 by refusing to admit her to the housing register.

She also said a letter from Lewisham indicated the qualifying period for local residence was six months, and not five years as the council said.

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Ms Montero lives in Lewisham and applied for social housing on the basis that she and her family live in overcrowded accommodation.

The council refused because - with limited exceptions - applicants only qualify for an allocation if they have lived in Lewisham for at least five years.

Henshaw J said: “I have come to the conclusion that neither ground of challenge succeeds.

“The legislation does not prohibit a disqualification criterion that affects some persons falling within a reasonable preference category, provided that viewed as a whole the scheme does give reasonable preference to that category of persons.

“Further, the only sensible meaning of the past residence rule in this case is that the disqualification for which it provides will continue to apply to any future applications, made at least six months after any previous application, until the applicant has satisfied the 5-year requirement.”

Ms Montero had argued it was unlawful for a disqualification criterion pursuant to section 160ZA of the Act to exclude a sub-group of persons falling within the reasonable preference provisions of section 166A(3).

She said correspondence from Lewisham had included the statement: ”your application will be disqualified for a period of six months” and this meant she was disqualified only for six months.

Henshaw J said the context for Lewisham’s policy was driven by “a serious shortage of housing stock”, noting evidence that there were more than 9,000 applicants on the housing register while lettings ran at only some 1,000 a year.

Ms Montero has lived in Lewisham since June 2018 with her husband, her sons aged 16 and 14, and her daughter aged seven in a privately rented two-bedroom with a combined living room/kitchen.

Henshaw J said: “As a matter of principle, there is no reason why local connection should not be taken into account through the adoption of a general rule.”

He went on: “There is a range of types of rule which, one can envisage, could rationally be made in this regard: relating for instance to financial resources, rent arrears and behaviour, in addition to local connection.

“Whilst section 166A(5) makes express provision for such criteria to be used when prioritising housing allocation among people falling within one or more of the reasonable preference categories, that does not prevent their legitimate use as qualifying criteria pursuant to section 160ZA(7).”

He said the meaning of the six months period was clearly that fresh applications could not be made during that time, not that this was the period for establishing a local connection.

The judge said: “The claimant's interpretation would mean that 'local connection' in substance required only six months' wait after making an application to join the register, and the five-year criterion…would be virtually redundant.

“That cannot be what the framers of the scheme intended.”

Mark Smulian

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