Lin, (R on the application of) v London Borough of Barnet [2007] EWCA Civ 132

[2007] EWCA Civ 132Case No C1/2006/1277
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Hughes J
Venue Strand, London, WC2A 2LLDate 22/02/2007
Before
LORD JUSTICE DYSONLADY JUSTICE HALLETTSIR PETER GIBSON
Between
The Queen (Mei Ling Lin)AppellantLondon Borough of BarnetRespondent
Mr A. Arden QC & Mr J. Manning (instructed by Messrs Pierce Glynn) for AppellantMr C. Baker & Mr N. Dilworth (instructed by London Borough of Barnet (Borough Solicitor)) for RespondentHearing Hearing date: 06 February 2007
Judgment
[1]Part VI of the Housing Act 1996 (“the 1996 Act”) contains provisions for the allocation by local housing authorities of housing accommodation. Part VII contains provisions in relation to homeless persons. This appeal from a decision of Hughes J is concerned with the lawfulness of the allocation scheme (“the Scheme”) established by the London Borough of Barnet (“the Council”) under section 167 of the 1996 Act. The judge held that the Scheme was lawful except in one respect which is not the subject of this appeal.

The statutory framework

[2]Section 159(1) of the 1996 Act provides that a local housing authority shall comply with the provisions of Part VI in allocating housing accommodation. Subsection (2) provides that allocation is done by selecting or nominating a person to be an introductory or secure tenant of accommodation held by the authority or by another person, or by nominating a person to be the assured tenant of accommodation held by a registered social landlord. An authority must have an allocation scheme “for determining priorities and as to the procedure to be followed” (section 167(1)). For this purpose, “procedure” includes “all aspects of the allocation process”. The authority may not allocate housing accommodation except in accordance with its allocation scheme (section 167(8)).[3]Section 167(2) provides:
“(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to- (a) people who are homeless (within the meaning of Part 7); (b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (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); (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 authority, where failure to meet that need would cause hardship (to themselves or to others).”
The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of people with urgent housing needs). (a) people who are homeless (within the meaning of Part 7); (b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (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); (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 authority, where failure to meet that need would cause hardship (to themselves or to others).”[4]Section 167(2A) provides: The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2); and the factors which the scheme may allow to be taken into account include-(a) the financial resources available to a person to meet his housing costs;(b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;(c) any local connection (within the meaning of section 199) which exists between a person and the authority’s district.” (a) the financial resources available to a person to meet his housing costs; (b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant; (c) any local connection (within the meaning of section 199) which exists between a person and the authority’s district.”[5]Section 167(2E) provides:
“(2E) Subject to subsection (2), the scheme may contain provision about the allocation of particular housing accommodation- (a) to a person who makes a specific application for that accommodation; (b) to persons of a particular description (whether or not they are within subsection (2)).” (a) to a person who makes a specific application for that accommodation; (b) to persons of a particular description (whether or not they are within subsection (2)).”
[6]Section 167(6) provides:
“Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.”
[7]Section 169 provides:
“(1) In the exercise of their functions under this Part, local housing authorities shall have regard to such guidance as may from time to time be given by the Secretary of State. (2) The Secretary of State may give guidance generally or to specified descriptions of authorities. ”
[8]It will be seen that section 167(2) draws a distinction between persons who are homeless (within the meaning of section 175) and those to whom a duty is owed by a local housing authority, inter alia, under various provisions of Part VII of the 1996 Act. Those to whom a duty is owed under these provisions include homeless persons to whom an authority owes a duty to secure that accommodation is available for his or her occupation (section 193(2)). That duty is discharged, inter alia, by securing that suitable accommodation provided by them or by some other person is available (section 206(1)). The appellant is a person to whom the Council owes a duty under section 193(2) which it is currently discharging under section 206.

The Scheme

[9]The Scheme is based on the award of points. In accordance with Government policy that there should be an element of choice in the allocation of housing, each vacant property is advertised. Applicants are given points to reflect their priority according to certain criteria, and are informed of the types of property for which they are eligible. The applicant with the highest number of points is offered the property. There are far more applicants who fall within section 167(2) (and are therefore entitled to reasonable preference) than there are available properties in which to accommodate them. As at 10 November 2005, the Council had 17,757 applicants on its waiting list for housing under Part VI. At that time, it had approximately 12,000 units within the borough at its disposal, including those that were then occupied. There were approximately 2,300 homeless persons to whom the Council accepted that it owed a duty under section 193(2) and who had been placed in temporary accommodation. The total number of properties that were allocated under the Scheme was just under 800 in 2004/05.[10]The points system is set out in Annex I to the Scheme. It is detailed and complex. I need refer only to certain elements of it:
“Insecurity of Tenure 30 points if the applicant is living without security of tenure e.g. lodger or guest or street homeless. 50 points if the applicant is a tenant who has received notice to quit and has no defence to eviction proceedings or the applicant has been accepted under our Homeless at home scheme or is living in a refuge because of domestic violence. 75 points if the applicant is living in emergency homeless accommodation provided by Barnet Council. These points will be reduced to 10 if the applicant is found to be intentionally homeless or if the duties under Part VII of the Housing Act 1996 cease. Applicants qualifying for 30 or 50 points can also qualify for points for overcrowding, shared facilities etc. Applicants qualifying for 75 points cannot get additional points for overcrowding or poor facilities. 300 points if living in leased homeless accommodation provided by Barnet Council about to be returned to the landlord. Homeless/Reasonable Preference points 10 points for homeless households needing family sized accommodation* owed certain duties under the homeless legislation by Barnet Council**. 75 points for homeless childless households needing one bedroom/studio accommodation owed certain duties under the homeless legislation by Barnet Council** *as defined in Annex 2 **under sections 65(2) and 68(2) of Part III of the Housing Act 1985 and sections 190(2), 192(3), 193(2) and 195(2) of Part VII of the Housing Act 1996 as amended. Discretionary points 10 points to homeless households owed a rehousing duty by Barnet Council prior to introduction of the 1996 Housing Act.” or the applicant has been accepted under our Homeless at home scheme or is living in a refuge because of domestic violence. These points will be reduced to 10 if the applicant is found to be intentionally homeless or if the duties under Part VII of the Housing Act 1996 cease. Applicants qualifying for 30 or 50 points can also qualify for points for overcrowding, shared facilities etc. Applicants qualifying for 75 points cannot get additional points for overcrowding or poor facilities. Homeless/Reasonable Preference points Discretionary points 10 points to homeless households owed a rehousing duty by Barnet Council prior to introduction of the 1996 Housing Act.”

Homeless/Reasonable Preference points

[11]In addition, an applicant is entitled to 10 “time points” for each year since joining the Register, subject to a maximum of 5 years or 50 points. Those households unable (on financial grounds) to meet their own housing needs are entitled to 100 “income points”. Those who are entitled to “Barnet Residency points” are entitled to 200 points: they include those who live in the Borough and have done so by choice for the last two years. Finally, there is a category of “Exceptional needs”. Those who are in this category are entitled to 500 points. They include, for example,(i) young people leaving the care of the Council put forward by Social Services and(ii) Council leaseholders displaced due to the imminent demolition of their property as part of redevelopment who are unable to pursue home ownership due to reasons of extreme financial, social or medical hardship.[12]It follows that, in relation to a homeless applicant entitled to income points (with one or more children and not previously resident in Barnet) who does not qualify for any points for exceptional needs or any other special points, the Scheme will work in the following way. In the first year of application, he has a maximum of 110 points (100 for income, 10 for homelessness); in the second year he has a maximum of 120 points (100 for income, 10 for homelessness, 10 for waiting); in the third year he has a maximum of 330 points (100 for income, 10 for homelessness, 20 for waiting, 200 for 2 years’ residence); in the fourth year he has a maximum of 340 points (100 for income, 10 for homelessness, 30 for waiting and 200 for 2 years’ residence); in the fifth year he has a maximum of 350 points (100 for income, 10 for homelessness, 40 for waiting and 200 for 2 years’ residence); and in the sixth year and thereafter until he is entitled to an additional 300 points “if living in leased homeless accommodation provided by Barnet Council about to be returned to the landlord”, he has a maximum of 360 points (100 for income, 10 for homelessness, 50 for waiting and 200 for 2 years’ residence).[13]The addition of 300 points where leased homeless accommodation provided by the Council is “about to be returned to the landlord” is subject to an important qualification. These additional points are only available(i) during the period 3 months before the date on which the lease is “returned” to the landlord and(ii) for a period of 3 months thereafter, or, if no allocation occurs within that period, until long-term temporary accommodation is provided. The existence of this qualification is not mentioned in the Scheme itself. This forms the basis of the fourth ground of appeal.[14]The Scheme reflects the policy of the Council as has been explained in correspondence. For example, in a letter dated 22 December 2004 to the appellant’s solicitors, the Council’s Resources Manager stated that, as a homeless person to whom the full duty to secure suitable accommodation had been accepted, the appellant was housed in long-term good quality accommodation; and that, although it was true that her tenure was insecure, leases of this type of unit run for up to 10 years. He continued:
“The reason that points reduce once a person is placed in this type of accommodation is precisely because (in the council’s opinion) they are now adequately housed. If the accommodation is unsuitable for any reason they are of course entitled to a review. It is not unusual for home owners or occupiers in the private rented sector to move within a 5 to 10 year period. Are you suggesting that their accommodation (which in the private rented sector is still insecure in terms of tenure) is unsatisfactory or that the length of time that they stay in a particular location is detrimental to the health or development of their children? It is the Council’s belief that by giving an additional 10 points we are allowing reasonable preference when placed against other families in a similar position. At the end of the lease for long term temporary accommodation we award a further 300 points in recognition of the fact that these clients should now be able to access permanent accommodation. This therefore rebuts your claim that the applicant cannot now, nor will ever, be able to bid successfully.” 15. A further justification for the policy is to be found in a letter dated 16 September 2002 from the Council’s Housing Needs Manager to the appellant’s solicitors: “The current arrangement for all people in leased properties is that they will be given high priority in the Temporary Accommodation Queue once their leased property ceases to be available. Where a lease is extended we expect the household to stay for the duration of the extension (in this case, until 2005). This is our established practice, followed consistently in respect of all households in Housing Association leased properties. To pursue any other policy would increase the costs of securing leases, as the Housing Association would have to carry void periods and reservicing costs, which would affect the cost of the leasing scheme to the Council. As I am sure you will appreciate, it is the Council’s responsibility to protect public funds and to be prudent with the public purse as far as possible. It might also jeopardise negotiations with both the Housing Association and landlord and lead to the loss of the property for the Council’s use. It would bring additional families into competition for scarce permanent rehousing, pushing them above the other households in arguably worse conditions, when they could remain where they are. The resource implications would be significant and adverse for the majority of people in housing need in the borough.”
The appellant 16. In January 2002, following her separation from her husband, the appellant and her son (then aged 10) moved into rented accommodation in the borough of Barnet. On 22 February 2002, under threat of eviction, she sought housing assistance from the Council. She was told that she could not apply as a homeless person, but was permitted to join the housing register for permanent accommodation awaiting an allocation of 2 bedroom accommodation. 17. In March 2002, she and her son were evicted from their accommodation. They applied for assistance under Part VII of the 1996 Act. They were provided with temporary bed and breakfast accommodation. The appellant and her son were accepted as persons to whom the full housing duty was owed under section 193(2). 18. On 5 August 2003, the Council notified the appellant that further Part VII accommodation had been secured for her family in what they referred to as “leased homeless accommodation”. This was a 2 bedroom flat owned by a private landlord who had granted a lease to Pathmeads Housing Association (“Pathmeads”). On 7 August 2003, Pathmeads sublet the flat to the appellant under a weekly assured shorthold tenancy. As an assured shorthold tenant, the appellant enjoys no security of tenure. It is not in dispute that Pathmeads need only serve two months’ notice of termination, whereupon it has an absolute right to possession. 19. The appellant has made many applications to the Council for 2 bedroom accommodation. A table included in the papers before us shows her bids between December 2003 (when she had 310 points) and October 2006 (when she had 350 points) . None of her bids was successful. The lowest successful bid during this period was by an applicant who had 410 points. The appellant had 100 points for income, 200 points for Barnet residency, 10 points for homelessness and 10 points (rising to 50 points) for being on the waiting list. The grounds of appeal 20. Mr Andrew Arden QC submits that the Scheme accords so few points to the homeless for their homelessness relative to the points given to other preference groups and to non-preference groups that (at any time prior to the impending loss of their leased homeless accommodation) they are incapable of successfully bidding for accommodation under the Scheme. For that reason, he submits that homeless applicants are excluded altogether from allocation of the Council’s housing stock. The first ground of appeal is that the Scheme is unlawful because it gives homeless applicants no preference as against other preference groups and thereby defeats the purpose of section 167 of the 1996 Act. The second ground is that the preference that they have as against other preference groups is unreasonable because it is insufficient to allow them to compete at all for an allocation at any time before the end of their homeless housing leases. The third ground is that the Scheme is unlawful because it affords no reasonable preference to homeless applicants as compared with non-preferred applicants. The fourth ground is that the Scheme fails to satisfy the requirements of section 167(1) as regards the description of the procedure in relation to the entitlement to 300 points at the end of lease. The first and second grounds of appeal: the position of homeless applicants as compared with that of other preferred groups 21. It is convenient to take the first two grounds together. Mr Arden does not submit that the Scheme is irrational: he accepts that it reflects the Council’s view as to the most cost effective and efficient way of utilising its limited housing stock. He also accepts that it is reasonable for the Council to regard those in leased homeless accommodation as being more adequately housed than others also in housing need. Nor does he dispute that the Council is entitled to award different points to different preference groups (provided that they can be said to be “reasonable”). But, he submits, none of this can justify the homeless being excluded from an authority’s allocation scheme altogether or for extended periods of time. 22. Mr Arden submits that homeless persons have so few points relative to the points given to other preference groups that, until the end of the lease, they are denied the opportunity of successfully bidding for accommodation. As the experience of the appellant shows, once a homeless person is accommodated in homeless leased accommodation, he or she will remain so housed until the lease is about to end. Once 360 points have been achieved, there is no mechanism for increasing the number of points until the lease-end points are awarded. This means in practice that the homeless applicant has no chance of an allocation under the Scheme until the lease is about to end.[23]Mr Arden recognises that section 167(2A) of the 1996 Act permits the Council to establish a scheme which contains provision for determining priorities “in allocating housing accommodation to people within subsection (2)” (emphasis added). He submits that the effect of the Scheme is not to confer a lower priority than that given to other applicants within section 167(2), which he concedes would be lawful. Rather, the Scheme reflects a deliberate policy of accommodating the homeless in temporary accommodation under Part VII of the 1996 Act which has been specifically designed to last for at least 10 years; of preventing them from taking any part in the Scheme until their temporary accommodation comes to an end; and meanwhile awarding them a token number of points creating nothing more than an illusion of preference. It is unlawful and frustrates the policy of Part VI of the 1996 Act to adopt a scheme under which those entitled to a reasonable preference are placed in temporary accommodation from which they are denied the opportunity to participate in the Scheme for 10 years or more.[24]I cannot accept Mr Arden’s submissions largely for the reasons given by Mr Baker. The Scheme accords preference to homeless applicants in a number of ways. They are all awarded 10 or 75 points (depending on whether there are children in the household requiring larger-sized accommodation). A further discretionary 10 points may be awarded for those who are owed such duties under the Housing Act 1985. As we have seen, they are awarded 300 points at the end of the lease. Homeless applicants living in emergency accommodation provided by the Council are awarded 75 points, unless they are intentionally homeless or the Part VII duties cease. Lodgers, guests and the street homeless are awarded 30 points. 50 points are awarded to tenants who have received a notice to quit and have no defence to possession proceedings; to those accepted under the “Homeless at home” scheme; and to those living in a refuge because of domestic violence. Finally, homeless persons may also acquire points under other elements of the scheme. I have already referred to the 500 discretionary points that may be awarded in various exceptional circumstances.[25]The test is not, as Mr Arden suggests, whether the homeless are “excluded from allocation”. It is whether they are given “reasonable preference” relative to persons who do not come within section 167(2). As Mr Baker points out, compliance with section 167(2) does not depend on outcomes. The duty to give a reasonable preference merely requires the giving of what Judge LJ referred to in the corresponding previous legislation (section 22 of the Housing Act 1985) as a “reasonable head start”: see R v Wolverhampton MBC ex p, Watters (1997) 29 HLR 931, 938. Preference should not be confused with prospects of success. Prospects of success depend on many factors, of which the most material is the fact that the demand for accommodation greatly exceeds the supply. It is quite possible for a lawful scheme to give reasonable preference to a person within section 167(2) and for that person never to be allocated Part VI housing. Such a person is entitled to no more than a reasonable preference.[26]Section 167(2A) expressly permits the local housing authority to determine priorities as between groups within section 167(2). The fact that homeless persons are accorded fewer points than other persons within section 167(2) cannot be a ground for challenge to an allocation scheme.[27]In my view, the Scheme undoubtedly does give preference to homeless persons who (like the applicant) who are owed a relevant duty under Part VII. Mr Arden focuses on the 10 points for “homeless households” and submits that this is a token number of points which does not of itself bring homeless persons within the Scheme. Even if the 10 points stood alone, I would reject this submission. As the judge pointed out, if the consequence of this is that Part VII duty cases never reach the bidding threshold in the present state of the market, that is the unfortunate result of the chronic shortage of housing and the fact that the categories in section 167(2) are so widely stated. But a person who has 10 points is in a better position to bid than a person who does not have 10 points. He is accorded a preference. As Mr Thornton explains in his first witness statement, “10 points can be and, often in practice, is the difference between two candidates pursuing the same property”.[28]As to whether the preference is “reasonable”, it seems to me that this is a matter for the discretion of the Council. It is clear that a factor which weighed heavily with the Council in its decision to give no more than 10 points to the homeless person who is owed a Part VII duty was its view that such persons are housed in suitable accommodation and that their need for accommodation under Part VI is less than that of other persons. They also took into account the resource and financial considerations referred to at para 15 above. In my view, these were matters which the Council, in the exercise of its discretion, was entitled to take into account.[29]But it is in any event not right to focus only on the basic 10 points for homeless persons. The other points which a homeless person may be awarded cannot be disregarded. In particular, the 300 points at the end of the lease. Mr Arden submits that the 300 points should be left out of account for a number of reasons. First, he says that this is in effect a deferred preference whereas the duty is to provide a scheme which accords a preference from the outset. Secondly, it is entirely arbitrary whether and if so when the landlord will want to have the property returned to him. Thirdly, the window of availability for the lease-end points does not afford a reasonable opportunity.[30]I do not accept these submissions. Section 167(2) requires the scheme to be framed so as to secure that reasonable preference is given. A scheme which gives Part VII duty applicants 300 points when their leases come to an end unquestionably does accord to them a preference not enjoyed by those who are not given those points. The fact that the points are contingent on the coming to an end of the current lease does not mean that they are not a preference. If that were the only preference that Part VII duty applicants were given, I can see that there might well be an argument as to whether that was a reasonable preference. But it is not. As regards Mr Arden’s other arguments in relation to the 300 points, I do not see how they have any impact on whether the 300 points are a preference.[31]I, therefore, reject the first two grounds of appeal.[32]For the first two years of an application, a homeless applicant who has not previously resided in the borough may have fewer points than an applicant on a low income who is accorded no preference (and may not have any housing needs at all) and who has merely applied to the Council for housing. During the first 5 years, a homeless applicant may have fewer points than an applicant who has no preference. For example, an applicant who does not fall within section 167(2) may be entitled to 300 points in his first year (200 points for local residence for 2 or more years plus 100 income points); and a homeless applicant who falls within section 167(2)(b) may be entitled to no more than 110 points in his first year (100 income points and 10 points for homelessness). Mr Arden submits that this shows that the Scheme does not accord a reasonable preference for the homeless applicant. He relies on what was said by Collins J in R(A) v Lambeth London Borough Council [2002] EWCA Civ 1084, [2002] HLR 57 at para 16: “Unless it is clear that no applicants who are not entitled to preference are able to compete on equal terms with those who are, the scheme cannot secure that the necessary head start is given”.

The judge dealt with this issue at para 23 in the following terms:

“It is necessary first to consider the income, residency and waiting points. It is suggested that these permit those with no statutory preference under s 167(2) to compete with Part VII duty cases on equal, or indeed preferential, terms. It is true that it may happen that an applicant who is outside s 167(2) may be entitled to a total of 350 income, residency and waiting points, and that a Part VII duty applicant may have only 10 points for his status as such. But that does not mean that no reasonable preference has been accorded to the latter. 10 points is a small number, but these are nevertheless points which a non-Part VII duty applicant, for example a person in a similar assured shorthold tenancy not provided by the Authority under Part VII but privately entered into, will not have. Income, residency and waiting points are available to all applicants, whether they are within s 167(2) or not. Their availability does not affect such preference as is accorded to Part VII duty applicants. That is enough to resolve that issue. Additionally, income and residence points are clearly specifically authorised by s 167(2A), whilst it is elementary fairness that as between otherwise similar applicants, a degree of priority should be given to those who have waited longest.”
[34]Mr Arden submits that it is not a question of a comparator with similar characteristics. The statutory preference entitles all those who must be preferred to a head start in seeking accommodation over all those who are not preferred, whatever the circumstances of the non-preferred applicant. He submits that the Scheme permits applicants who do not come within section 167(2) to be awarded more points than those who do come within the subsection. The award of 10 points to a homeless person(a) (A) does not accord reasonable preference to him as compared with a person(b) (B) who does not come within section 167(2) and who is entitled, say, to 200 points on the grounds of 2 years’ local residence. The Scheme does not secure for A reasonable preference as compared with B. In a comparison between the two cases, the award of 10 points to A which are not awarded to B is of no consequence. Mr Arden also submits that the judge was wrong to hold that the 1996 Act permits the award of points for income, residency and waiting to all applicants, whether they are within section 167(2) or not.[35]I cannot accept these submissions again largely for the reasons given by Mr Baker. Section 167(2A) expressly permits a scheme to determine priorities as between people who fall within subsection (2) taking into account factors which include financial resources available to the applicant and any local connection with the authority’s district. But it does not follow that such factors are otherwise irrelevant and must be excluded from a scheme. The discretion in section 167(6) is wide enough to permit an authority to take such factors into account when considering the priority to be given to applicants who fall outside section 167(2). It is true that the discretion in section 167(6) must be exercised subject to “the above provisions”. Section 169 of the 1996 Act requires local housing authorities to have regard to such guidance as may from time to time be given by the Secretary of State. So far as material, the relevant Code of Guidance provides: “5.9 c) the reasonable preference categories must not be treated in isolation from one another. Since the categories can be cumulative, schemes must provide a clear mechanism for identifying applicants who qualify under more than one category, and for taking this into account in assessing their housing need; d) there is no requirement to give equal weight to each of the reasonable preference categories. However, housing authorities will need to be able to demonstrate that, overall, reasonable preference for allocations has been given to applicants in all the reasonable preference categories. Accordingly it is recommended that housing authorities put in place appropriate mechanisms to monitor the outcome of allocations; and e) a scheme may provide for other factors than those set out in s 167(2) to be taken into account in determining which applicants are to be given preference under a scheme, provided they do not dominate the scheme at the expense of those in s.167(2) (See para. 5.25 below). …………… 5.25. While housing authorities will need to ensure that, overall, reasonable preference for allocations is given to applicants in the relevant categories in s167 (2), these should not be regarded as exclusive. A scheme should be flexible enough to incorporate other considerations. For example, housing authorities may wish to give sympathetic consideration to the housing needs of extended families. However, housing authorities must not allow their own secondary criteria to dominate schemes at the expense of the statutory preference categories. The latter must be reflected on the face of schemes and be evident when schemes are evaluated over a longer period.” ……………[36]It is clear, therefore, that a scheme may give reasonable preference to applicants who do not fall within section 167(2) provided that such non-statutory preferences do not dominate the scheme at the expense of the statutory preference categories. This prohibition on domination of the scheme at the expense of the statutory preference categories reflects the fact that the discretion given by section 167(6) is expressed to be subject to the earlier provisions of section 167.[37]It is not in dispute that in certain circumstances the Scheme awards fewer points to an applicant who falls within section 167(2) than to someone who does not. But in the light of section 167(6) and the Code of Guidance, it does not necessarily follow that the Scheme is unlawful. It is necessary to look at the Scheme as a whole and not at an individual case and consider whether the fact that non-statutory preference categories may in certain circumstances be awarded more points than statutory preference categories means that the scheme permits the former to dominate at the expense of the latter.[38]I am not persuaded that it does. First, homeless persons may be awarded up to 350 points under the same heads as non-statutory preferred persons. They will almost always acquire the 100 points for income (as the appellant did in the present case). They will accrue 10 points each year (for 5 years) for waiting time. Moreover, they will often have had periods of prior residence in the authority’s area entitling them to 200 points for 2 years’ residence, since otherwise they would generally have been referred for assistance with their homelessness to another authority with which they had a local connection. In the present case, when the Council accepted that they owed the appellant a homelessness duty, she had been resident in Barnet for about 15 months. It can be seen, therefore, that in the real world, the award of these points to non-statutory preferred persons will not cause them to dominate the statutory preferred persons.[39]Secondly, homeless persons are additionally entitled to 10 points for their homelessness and to 300 points at the end of the lease and may also be entitled to further points in the circumstances referred to at para 24 above. None of these additional benefits (except the 500 points for “exceptional needs”) is available to non-statutory preferred persons. As the judge said, that is a sufficient reason for holding that a reasonable preference is accorded to the homeless applicant.[40]Thirdly, the way that the Scheme currently works in fact shows that it is not defeating the reasonable expectations of homeless applicants. The maximum number of points which could be awarded under the three heads to non-statutory preference groups is 350. In practice at the present time applicants must achieve a minimum of 410 points for a successful bid for a property (except in relation to sheltered housing, in respect of which an applicant would fall within a statutory preference in any event). Thus, the award of even the maximum level of points for waiting times, lack of financial resources and period of local residence cannot be said to be at the expense of an applicant who falls within section 167(2). In order to achieve an allocation, an applicant needs to acquire further points.[41]Fourthly, the passage from the judgment of Collins J in R(A) v Lambeth does not support Mr Arden’s argument. What Collins J said was in the context of his rejection of the argument by Lambeth that it was de minimis for a group within its allocation scheme to contain 4% of applicants outside section 167(2), who were accorded preference in exactly the same way as the 96% within the same group who fell within the subsection. At para 15 of his judgment, Collins J referred to the fact that the Code “recognises that other factors than those in section 167(2) can be taken into account and given weight provided that they do not dominate the scheme at the expense of those in section 167(2)”. In the present case, homeless applicants under the Scheme are not competing on equal terms with applicants who fall outside section 167(2): the former are entitled on the grounds of their homelessness to their own special awards of points which the latter do not receive.[42]I would, therefore, reject the third ground of appeal.

The fourth ground of appeal: the Scheme does not comply with section 167(1)

[43]Mr Arden submits that the Scheme contains no explanation as to the operation of the 300 lease-end points. In particular, it is silent on the question of precisely when and for how long the 300 points are available to a homeless applicant. The Scheme merely provides for “300 points if living in leased homeless accommodation provided by Barnet Council about to be returned to the landlord”. The failure to include such information within the Scheme means that it does not specify the procedure for allocations as required by section 167(1).

The judge rejected this complaint at para 35 of his judgment:

“A further challenge to the scheme is mounted on the basis that it insufficiently explains its process and/or is too dependent upon discretion, and thus fails to comply with s 167(1). There is said to be insufficient precision in the rule that 300 lease-end points will be awarded to Part VII duty cases whose properties are "about to be returned to the landlord". I see no difficulty in any tenant understanding this rule; at the very least, once notice has been given by the landlord the property is plainly about to be returned. Nor do I consider that unlawful uncertainty is created by any flexibility there may be in the time during which the 300 points may be deployed. The rule clearly means that whilst under notice, or in equivalent position, the tenant may bid for another property employing an extra 300 points. No doubt if he is unsuccessful, he will have to be provided again with accommodation under Part VII. There is nothing unlawfully uncertain about that. Nor is this a scheme in which there is irrational discretion; there is power to exercise residual discretion but the evidence shows that it is extremely rarely employed. Overall the scheme perfectly adequately explains for potential applicants how they should go about making their applications and how points are awarded to them and to others.”
[45]Mr Arden makes the point that the Council does not appear to have adopted the judge’s explanation of the Scheme. Since the date of the hearing below, the appellant has been served with notice under section 21 of the Housing Act 1988 by Pathmeads. In a letter incorrectly dated 30 May 2005 (it is agreed that the correct date is 30 May 2006), the Council’s housing officer said that the appellant was not expected to leave when the section 21 notice expired (in 2 months). The notice had been served in order to facilitate possession proceedings if the appellant did not hand the property back when the lease expired (end of August 2008) or if she breached any of the conditions of the tenancy. In his letter dated 21 June 2006, Mr Thornton said that the service of the notice was not the trigger for the 300 points. He wrote:
“We award lease end points when we know that the lease is actually going to come to an end. When leases are taken out by the Local Authority there is a distinct possibility that the lease may be extended. In order to know that a lease is definitely coming to an end we need to receive notification from the provider of said property that there will be no lease renewal and that a court date has been set to apply for return of the property. It is this notification that triggers the award of 300 points.”
[46]Mr Baker seeks to support the decision of the judge. He points out that what he describes as a similar argument was rejected in the Lambeth case at paras 23-25. But the argument there was that the scheme was flawed because it did not show who would qualify for what Group and who in each Group would achieve preference, and that it was not lawful to leave it to officers to make decisions unless the criteria were clearly spelt out. Collins J said that the scheme did not have to contain the degree of precision that was submitted to be necessary.[47]Mr Baker submits that the window of opportunity for the lease-end points does not have to be described in the Scheme. That kind of information is what one would expect to be communicated by the Council officers.[48]This is a short point not capable of much elaboration. In my judgment, information as to when and for how long the 300 points are available is not a mere matter of detail. It is central to the operation of this part of the Scheme. I consider that it is an important “aspect of the allocation process” which section 167(1) required to be included in the Scheme, and that, because it was not so included, to that limited extent the Scheme is invalid.[49]I would, therefore, allow the appeal on the fourth ground, but otherwise dismiss this appeal.[50]I agree.

Sir Peter Gibson:

[51]I also agree.

Cited in 16 later judgments

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