Cali & Ors , R (on the application of) v London Borough of Waltham Forest [2006] EWHC 302 (Admin)

Case No CO/2124/2005[2006] EWHC 302 (Admin)IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 24 th February 2006
Before
MR JUSTICE LLOYD JONES
Between
THE LONDON BOROUGH OF WALTHAM FORESTDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Kevin Gannon (instructed by Messrs Edwards Duthie) for ClaimantsMr Ranjit Bhose (instructed by The London Borough of Waltham Forest) for Defendants
JudgmentMr Justice Lloyd Jones :
[1]In these proceedings the three Claimants bring a challenge to the lawfulness of the scheme for the allocation of social housing adopted by the Defendant pursuant to Part VI Housing Act 1996.[2]As originally enacted Part VI provided: “ 159. -(1) A local housing authority shall comply with the provisions of this Part in allocating housing accommodation. … (7) Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate. 167. - (1) Every local housing authority shall have a scheme (their "allocation scheme") for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. For this purpose "procedure" includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken.(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to- (a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions, (b) people occupying housing accommodation which is temporary or occupied on insecure terms, (c) families with dependent children, (d) households consisting of or including someone who is expecting a child, (e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and (f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation. The scheme shall also be framed so as to secure that additional preference is given to households within paragraph (e) consisting of someone with a particular need for settled accommodation on medical or welfare grounds who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future. … (6) 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. … (8) A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme. 169. - (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.” (a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions, (b) people occupying housing accommodation which is temporary or occupied on insecure terms, (c) families with dependent children, (d) households consisting of or including someone who is expecting a child, (e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and (f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation.[3]Initially, authorities sought to give effect to the requirement to give reasonable preference by the use of various points-based allocation schemes, in which an award of points was intended to reflect the categories of reasonable preference. Accommodation was then awarded to those with the highest points. However, the Housing Green Paper: “Quality and Choice: A Decent Home For All”, which was published in April 2000, proposed that authorities should set up choice-based letting schemes.[4]One of the amendments made by the Homelessness Act 2002 to Part VI of the Housing Act 1996 was to insert section 167(1A) which provides:
“The scheme shall include a statement of the authority’s policy on offering people who are to be allocated housing accommodation— (a) a choice of housing accommodation; or (b) the opportunity to express preferences about the housing accommodation to be allocated to them.” (a) a choice of housing accommodation; or (b) the opportunity to express preferences about the housing accommodation to be allocated to them.”
[5]Section 169 of the Housing Act 1996 requires an authority to have regard to the guidance published by the Secretary of State. This is in the form of a Code of Guidance on the Allocation of Accommodation. Following the amendment of the Housing Act 1996 in 2002, the Code of Guidance was revised to take account of the 2002 amendments and also to reflect the key points arising from the Court of Appeal judgment in R(a) (A) v Lambeth LBC and R (Lindsay) v Lambeth LBC [2002] EWCA Civ 1084; [2002] HLR 57. The following provisions of the revised Code of Guidance are relevant to the present application. “5. 1. Housing authorities are required by s.167 of the 1996 Act to have an allocation scheme for determining priorities, and for defining the procedures to be followed in allocating housing accommodation. Procedure includes all aspects of the allocation process, including the people, or descriptions of people, by whom decisions are taken. It is essential that the scheme reflects all the housing authority's policies and procedures, including information on whether the decisions are taken by elected members or officers acting under delegated powers. Under s.167 (1A) the scheme must include a statement of the housing authority's policy on offering eligible applicants a choice of accommodation or the opportunity to express preferences about the accommodation offered to them. The scheme must also be framed in such a way as to ensure that reasonable preference is given to certain classes of people. The categories have been revised by the 2002 Act. 5.8. In framing their allocation scheme so as to determine priorities in the allocation of housing, housing authorities must ensure that reasonable preference is given to the following categories of people, as set out in s167 (2) of the 1996 Act: (a) people who are homeless (within the meaning of Part 7 of the 1996 Act); this includes people who are intentionally homeless, and those who are not in priority need;(b) people who are owed a duty by any housing authority under section 190(2), 193(2) or 195(2) of the 1996 Act (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any housing 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; and(e) people who need to move to a particular locality in the district of the housing authority, where failure to meet that need would cause hardship (to themselves or to others). 5.9. It is important that the priority for housing accommodation goes to those with greater housing need. In framing their allocation scheme to give effect to s.167 (2), housing authorities must have regard to the following considerations: a) the scheme must include mechanisms for: i) ensuring that the authority assess an applicants housing need and for ii) identifying applicants in the greatest housing need. b) the scheme must be framed so as to give reasonable preference to applicants who fall within the categories set out in s.167(2), over those who do not; 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). 8. Otherwise, it is for housing authorities to decide how they give effect to the provisions of s.167 (2) of the 1996 Act in their allocation scheme. 5.10. The Secretary of State is of the opinion that there is sufficient flexibility within the statutory framework to enable housing authorities to offer applicants a choice of accommodation while continuing to give reasonable preference to those with the most urgent housing need. 5.11. When considering how to reconcile choice and housing need, housing authorities should consider adopting a simplified system of applicant prioritisation in place of a complex points-based approach. An appropriate approach might include systems that: (a) band applicants into a number of groups reflecting different levels of housing need, with prioritisation of applicants within these groups being determined by waiting time, and/or (b) give people in the most urgent housing need priority over other applicants (often by using a time-limited priority card). 5.18. Section 167(2) gives housing authorities the power to frame their allocation schemes so as to give additional preference to particular descriptions of people who fall within the reasonable preference categories and who have urgent housing needs. All housing authorities must consider, in the light of local circumstances, the need to give effect to this provision. Examples of people with urgent housing needs to whom housing authorities should consider giving additional preference within their allocation scheme include : (a) those owed a homelessness duty as a result of violence or threats of violence likely to be carried out and who as a result require urgent re-housing, including:• victims of domestic violence;• victims of racial harassment amounting to violence or threats of violence;• same sex couples who are victims of harassment amounting to violence or threats of violence; and• witnesses of crime, or victims of crime, who would be at risk of intimidation amounting to violence or threats of violence if they remained in their current homes.• Housing authorities need to have local liaison arrangements with the police to ensure that allocations can be made quickly and confidentially, where necessary; (b) those who need to move because of urgent medical reasons.”[6]The Defendant’s current allocation scheme was introduced on 1st October 2003. It was intended to take account of the 2002 amendments to the Housing Act 1996 and revised Code of Guidance. In particular, it was intended to introduce a measure of choice for those in need of social housing. It replaced the points-based system which the Defendant had previously applied with a system based on bands of need.[7]The new allocations scheme was framed against the background of the housing situation within the Borough of Waltham Forest. This matter had been considered in detail in the Homelessness Review which the Defendant had been required to carry out under section 1, Homelessness Act 2002. This formed the basis for its new housing scheme.[8]There is no doubt that Waltham Forest faces a very challenging situation so far as the provision and allocation of housing is concerned. Mr Bourne, the Group Manager, Housing Options of the Defendant, summarises in his witness statement the results of the Homelessness Review. Of the 90,000 households in the Borough some 59% (52,921) were owner-occupied, 24% (21,387) were rented from the Council or RSLs and 15% (13,253) were rented from private landlords or agents. 16% (14,410) of all households identified themselves as being overcrowded. The 2000 Private Sector Housing Condition Survey revealed 5,672 unfit homes with a further 9,570 borderline unfit or in need of substantial repair. 26% of private rented stock was deemed unfit compared with 6% of all housing in the Borough. The demand for all forms of housing within the Borough far outstripped supply. Each year demand was running at a level of nearly 4,000 units per annum. Overcrowding was a major issue. Of the 6,408 households living in the private sector and assessed by the Council as requiring a one-bedroom property, 4,082 (63%) lacked one room and 2,408 lived in non-self-contained accommodation. The level of overcrowding was considerably higher in Council stock. Of 799 households who had registered their need 533 (67%) of households lacked one room, 191 (24%) lacked two and 44 (5.5%) lacked three. The total annual supply for letting of Council/RsL properties by way of allocation was in the region of 900. The gap between supply and demand for social housing was increasing and was set to continue to do so.[9]The scheme adopted by the Defendant stated that it aimed to offer individuals a more active role in choosing accommodation, taking into account individual circumstances and waiting time, to provide applicants with sufficient information to make an informed choice about opportunities for rehousing and to make the process more transparent and easier to understand.[10]The scheme allocates each application to one of three preference bands: additional preference, reasonable preference and no preference. It operates a bidding system for properties which become vacant. Only those in the additional preference and reasonable preference bands are allowed to bid. Those in the additional preference band have priority over all other applicants. Within the additional preference band priority is given by reference to the date on which the household was awarded additional preference. Within the reasonable preference band priority is given by reference to the original registration date. Those in the no preference band effectively have no prospect of securing social housing in the Defendant Borough.[11]The additional preference band is intended for “applicants with a high level of need for accommodation”. It is clear from the evidence that this is deliberately a narrow band. The scheme identifies examples of such cases. Of the ten situations identified, three relate to cases where the Defendant owes a full homelessness duty under section 193(2), Housing Act 1996. The other examples include the following:
“Applicants awarded Additional Preference on social grounds by the Council’s Social Needs Panel. Applicants awarded Additional Preference on medical grounds by the Council’s Medical Adviser/Disability Panel Applicants awarded Additional Preference on harassment grounds by the Council’s Harassment Panel.”
Applicants awarded Additional Preference on medical grounds by the Council’s Medical Adviser/Disability Panel Applicants awarded Additional Preference on harassment grounds by the Council’s Harassment Panel.”

Applicants awarded Additional Preference on medical grounds by the Council’s Medical Adviser/Disability Panel

[12]The scheme includes a Social Needs Assessment Protocol. This states that social needs priority for rehousing is awarded on the following criteria:
“High priority/high risk Additional preference Without the provision of suitable settled accommodation, the individual user or member of the household would be at risk of physical and/or emotional harm (through serious suffering or neglect) and with the risk of an imminent breakdown in their situation.”
A number of examples are then set out.[13]Under the scheme disability/medical priority for rehousing is awarded on the following criteria:
“High priority/high risk Additional preference Without the provision of suitable settled accommodation an individual or member of the household with a permanent medical condition/disability would be at serious risk including where the accommodation seriously restricts their independence including people who are currently managing with great difficulty and by doing so are causing their condition to deteriorate e.g. acute rheumatoid arthritis.”
The scheme also awards priority, including additional preference, to cases of serious harassment, of which it gives examples.[14]In his submissions on behalf of the Defendant Mr Bhose explained that the Defendant’s former scheme which had operated on a points basis had been unpopular with the public. It was disliked because it was complex and because it led to leapfrogging. Applicants could not know how long they would be likely to have to wait for accommodation. In his submission the new scheme had many advantages: in particular, applicants know what priority they have under the scheme, they are made aware of what accommodation is available and are able to bid for it, and they are able to assess their own needs and reflect them in the bids they make.[15]The Claimants all have needs for social housing which they claim are not being met under the scheme currently operated by the Defendant. The first Claimant, Ms Cali, occupies a two-bedroom flat where she lives with six children, four of whom are hers and for two of whom she has parental responsibility. The eldest daughter is 18 and has to share a bedroom with her brother. Two of the children have asthma. One child has epilepsy. The Defendant notified Ms Cali that its Medical Disability Panel had not awarded any priority because neither she nor any members of her family had mobility problems. A social needs assessment was to be carried out. Following that assessment the Defendant wrote that its Social Needs Panel considered the level of overcrowding should be recognised by an award of reasonable preference.[16]The Second Claimant, Ms Abdi, lives in a one-bedroom flat with her three children, aged between six months and four years, her niece and her niece’s child who is now a year old. Ms Abdi has in the past suffered from post-natal depression and has been depressed due to her overcrowded accommodation. The Defendant notified Ms Abdi that her case had been considered by its Social Needs Panel and an award of additional preference was not made.[17]The Third Claimant, Ms Hassan, and her two children occupy two rooms. The Defendant Council awarded Ms Hassan reasonable preference in recognition of her overcrowding. A wait of five to ten years was predicted. Medical evidence was submitted concerning kidney pain suffered by Ms Hassan which, it was said, was made worse by the overcrowding because she had to share a bed with her daughter. The Defendant referred the matter to its Medical/Disability Panel and decided that no priority should be awarded on this basis.[18]This challenge is directed at the scheme adopted by the Defendant authority and, as a result, at the approach it has followed in relation to the applications of the individual Claimants. Before me argument concentrated on the lawfulness of the Council’s allocation scheme and not on the particular circumstances of the individual Claimants and other members of their households. Although at the permission stage it had been maintained by the Defendant that the claims were academic because, on any view, these Claimants could not have qualified for additional preference, this point was not pursued before me and it was common ground that these claims provided an appropriate basis on which to rule on the lawfulness of the scheme.[19]The Claimants challenge the lawfulness of the Defendant’s allocation scheme on the following grounds: 1. The Defendant’s scheme does not permit preference to be given to households which have composite needs. In this regard the Claimants make the following specific complaints:(i) It is said that under the scheme there is no machinery by which a household qualifying for reasonable preference can on the basis of its composite needs be promoted into the band of additional preference. Here the Claimants point to what they say is a very high threshold for qualification for additional preference and contend that unless one member of the household can meet that very high standard there is no means by which the cumulative needs of the individuals concerned – whether one person qualifying for reasonable preference on more than one ground or more than one person qualifying for reasonable preference on the same or different grounds – can result in promotion of the household to the additional preference category.(ii) It is said that because of the very wide range of needs to be found in the reasonable preference band, when households with cumulative needs of this kind are left in the reasonable preference band they are denied proper preference because within that band priority is granted solely by reference to waiting time. 2. It is said that there is a failure to define criteria for the reasonable preference band.[20]In approaching these issues it is important to bear in mind that the court is here concerned with a broad discretionary power conferred on the authority by Parliament. As Richards J. observed in R v Islington LBC, ex parte Reilly & Mannix [1998] 31 HLR 651 (at p665) it is not for the court to impose on the authority under the guise of judicial review, judgments that are properly those of the authority or obligations that Parliament has refrained from imposing on the authority. It is for the authority to decide on the particular categories of need and to decide into which categories individual applicants fall. Thus Collins J.

(A) v Lambeth LBC:

“Parliament has left it to the authority to decide how to assess the various categories and what weight should be attached to each. In fact, what the authority must do is assess the needs of each applicant and endeavour to give preference to those in greater need.”
[21]The criticisms which are made by the Claimants are essentially criticisms of the approach followed by the Defendant, and in particular the alleged failure of that approach to take proper account of composite need where it arises. In this regard, it is important to bear in mind that the assessment of need and the identification priorities cannot be an exact science. It inevitably involves the exercise of judgement and the balancing of a wide range of demands and needs. Thus Collins J.

(A) v Lambeth LBC:

“Any scheme which is aimed at an assessment of comparative need will be imperfect. Whether by means of quotas or points with an injection of discretion or howsoever, it will inevitably involve elements of subjective judgement and individuals will feel that their needs are greater than those of others who have been given priority over them.”
(at para. 19) Nevertheless, the exercise of judgment in individual cases must take place within a framework which conforms with the requirements of the legislation.[22]Composite need is a concept which has been developed in the case law. It is important to note that the relevant cases were decided on the provisions of the Housing Act before its amendment by the Homelessness Act 2002. Nevertheless, I consider that they still provide a clear statement as to what the legislation requires in this regard. Although the amendments introduce an element of choice into the allocation process, the provisions establishing the need to frame schemes so as to give preference to identified priorities remain unchanged. Housing need remains the priority.[23]Composite need was addressed by Richards J in R v Islington LBC, ex parte Reilly & Mannix (at p. 666) in the following terms; “There can be no doubt that, subject to the residual discretion, the method of calculating allocations points under the present scheme is incapable of producing a fair assessment of applicants’ respective housing needs. That is because it makes only very limited allowance for multiple categories of need (the grant of 100 additional points for eligibility under further categories) and makes no allowance at all for the number of persons within the applicant’s household who are affected by a particular category of need (e.g. the number of children affected by overcrowding or suffering from a medical condition). There is no possibility of a “composite” assessment, to use the applicants’ expression.”[24]Latham J considered the question in R v Westminster City Council, ex parte Al-Khorsan (2001) 33 HLR 6:
“The various categories of need identified in section 167, and in the 1997 Regulations, are not to be treated, it seems to me, as separate watertight compartments. They identify needs which are capable of being cumulative. And it is only in that way that a proper judgment can be made of the respective needs of persons on the list. This was recognised by Richards J. in R v Islington LBC, ex parte Reilly & Mannix at p666. In so far, therefore, as the respondent’s scheme precludes consideration of any of the other categories to which reasonable preference and additional preference ought to be given, under section 167(2) it is unlawful, in that it excludes from consideration matters which Parliament has required the respondent to take into consideration. The extent to which priority should be given within the homeless category to those who may fall within the other categories is a matter for the respondent. But those who have needs which are capable of falling into any of the other categories are entitled to have those needs taken into consideration.”
[25]In R (A) v Lambeth LBC Collins J cited this passage and observed:
“This can be encapsulated in the requirement that the scheme in question has a mechanism for identifying those with the greatest need and ensuring that so far as possible and subject to reasonable countervailing factors (for example, past failure to pay rent et cetera) they are given priority. No doubt normally those in greater need will be those who qualify under more than one category, but it will not necessarily be the case that X who is in more categories than Y automatically must be regarded as being in greater need than Y. All will depend on the circumstances, one of which may include the length of time Y has spent waiting. In the Islington case Richards J decided that the scheme could not achieve what it should in this respect and so failed because it was irrational. That in my view is the correct approach. So we have to decide whether the method which Lambeth has devised in its Allocations Policy to identify and to give priority to those in greatest need can reasonably be said to achieve its object.”
(at paras 18, 19)[26]Accordingly, it is necessary to ask whether the scheme employed by the Defendant has a mechanism for identifying comparative need and ensuring that, so far as possible and subject to reasonable countervailing factors, those in greater need are given priority. The system must ensure that due account is taken of need under all of the heads identified under the legislation. The question is whether the Defendant’s scheme can achieve what it should in this regard.[27]In his submissions on behalf of the Claimants, Mr. Gannon accepted that the Green Paper and the Code of Conduct contemplated the use of relatively broad bands and a movement away from a point-based system. He submitted that this was unobjectionable provided that the needs of all those within each band could fairly be considered to be of broadly similar urgency. In his submission this was what was contemplated. In his submission, while there were situations in which the banding could be as simple as a three-band system comprising people with an urgent need for social housing, those in non-urgent need of social housing and those with no particular need for it, he maintained that it was not intended that it would necessarily be appropriate for all authorities to adopt such a simple model. He submitted that in areas of high demand the number of households within the urgent category would be significant and that accordingly it might be necessary to introduce additional bands to differentiate between demand priorities. In Mr Gannon’s submission, allocation within each band by reference to waiting time is acceptable provided, once again, that all cases in each band can fairly be considered of broadly similar urgency. In his submission that this is what was intended appears from paragraph 5.24 of the Code of Guidance which provides:
“5.24 There should be arrangements for determining allocation priorities between two households with similar levels of need. It would be legitimate to employ some indicator that reflects the time spent waiting at a particular level of need. Waiting time would normally run from the date of the original application to the housing authority, in the case of new applicants; and in the case of transfer applicants, from the time they applied to the housing authority to be transferred. Whatever indicators are used, they should be set out clearly in the allocation scheme. ”
[28]In the present case the additional preference band is deliberately made very narrow. In his witness statement Mr Bourne makes clear that, save for the statutory homelessness cases, the additional preference band is “a designedly small band” reflecting the fact that these are the households with the highest relative needs who therefore need to be moved into suitable accommodation in the very short term. Elsewhere in his witness statement he explains that to satisfy the Panel of an entitlement to additional preference requires extreme circumstances. With regard to the First Claimant, Ms Cali, he states that whilst the Council does not suggest that her accommodation is at all suitable, her situation is not – within the context of the Defendant Borough – exceptional or of such severity that she should be accorded an additional preference, when considered in isolation from or in conjunction with the other matters. When one considers the conditions of Ms Cali’s household and the submission of the Defendant at an earlier hearing that it is unarguable that it would qualify for additional preference, it becomes clear how high is the threshold for additional preference.[29]The fact that the threshold for the additional preference band is set so high necessarily means that the reasonable preference band will cover a very broad range of cases of varying need, from those which just fail the “exceptional” test to those which just clear the hurdle of demonstrating a particular need. To my mind, this factor is critical when one considers whether the existing scheme is capable of identifying those with the greatest relative need and giving proper recognition to the composite needs of households in the Defendant Borough.[30]Mr Gannon placed particular reliance on para 5.9(c) of the Code of Guidance which makes clear that the reasonable preference categories must not be treated in isolation from one another. It states that 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. It is, of course, important to bear in mind that this provision is not legislation. On the contrary, it is a provision in a Code to which the Defendant authority is required to have regard when drawing up its allocation scheme. Nevertheless, it embodies an important principle that proper recognition should be accorded to composite need, a principle established in the case law and, in particular, in the decision of the Court of Appeal in R (A) v Lambeth LBC.[31]I accept the submission of the Claimants that the Defendant’s published scheme does not allow for cumulative grounds for the grant of preference to be recognised and reflected in an assessment of housing need. There is no mechanism in the published scheme whereby a household qualifying a number of times over for reasonable preference can, on the basis of its cumulative need, qualify for additional preference. Indeed it was common ground in the course of argument before me that under the published scheme such a household could not qualify for additional preference unless at least one member could cross the threshold for additional preference. Moreover, such a household would then remain in the reasonable preference band where its additional needs would not be given any effect since priority within that band depends entirely upon the date of original registration. The published scheme would permit a household to qualify for reasonable preference on the basis of social need. If one member of the household also suffers from a medical condition which would, of itself, bring the household into the reasonable preference band but was not so exceptional or of such severity as to bring the household into the additional preference band, the additional medical need could not be given any effect. Similarly, if a household has a number of children with medical conditions which, in each case, would require classification within the reasonable preference band but not within the additional preference band, the needs of the others could not be given any effect. The overall effect of this is intensified by the fact that the reasonable preference band is, under the Defendant’s scheme, a very wide band so that the failure to recognise the additional qualifying needs is that much more serious. A large number of needs of widely varying severity are banded together and thereafter priority is determined solely on the basis of waiting time.[32]Mr Bhose, for the Defendant, advanced a number of alternative responses.[33]First, he maintained that the Defendant complied with its obligations under Part VI of the Housing Act 1996 by identifying and giving priority to those in greatest need. This, he said, was achieved by establishing the band of additional preference and by identifying those cases of extreme need which satisfied its criteria. The authority, he said, was not under any duty to identify and cater for other gradations of need below the highest category. In this regard he referred to a number of passages in the Code of Guidance. For example, the introductory letter states that the guidance addresses the issue of how to offer applicants a choice of accommodation while continuing to give reasonable preference to those with “the most urgent housing need”. Similar references to “the greatest housing need” and “the most urgent housing need” appear in paras 5.8 and 5.10 respectively. Similarly, Mr Bhose referred to the formulation by Collins J in R (A) v Lambeth LBC (at para 18) which refers to “the requirement that the scheme in question has a mechanism for identifying those with the greatest need”.[34]I am unable to accept this submission for a number of reasons. First, it is clear that the references to “greatest need” in the Code of Guidance and in R (A) v Lambeth LBC were not intended to limit the duty to the identification of the highest category of need. Rather, what was to be addressed was the question of comparative need, as paragraph 19 of the judgment of Collins J in R (A) v Lambeth LBC makes abundantly clear. Moreover, should it be thought necessary, at the level of textual analysis it is possible to match each reference to “greatest need” with a reference to “greater need”. The policy behind the legislation is to allocate social housing in accordance with social need. What is required is a fair and reasonable assessment of the relative needs of applicants, not simply the identification of those in the most extreme needs. Moreover, if all that is required is the identification of the top tranche it is difficult to see why the Green Paper, the Code of Guidance and the legislation all contemplate different categories of priority. I readily accept the submission of Mr Gannon on behalf of the Claimant that a scheme which only identified and provided for those in the most extreme need would fall far short of what this legislation requires it to do.[35]Next, Mr Bhose submitted that the requirements of the legislation were met by the Defendant’s scheme because it embodies a system of self-assessment. The Defendant’s scheme, he says, permits each household qualifying for reasonable preference to take a realistic view of its needs and the likelihood of their being met. A bid for a less attractive property is more likely to be successful. As Mr Bourne explains in his witness statement, since all applicants in the reasonable preference band are entitled to bid for properties, those who consider themselves to be in real need of moving quickly may bid for the less attractive properties that are advertised. This argument echoes a very similar argument advanced by Lambeth LBC in R (A) v Lambeth LBC where great emphasis was placed by Lambeth on the opportunity to make a choice to achieve preference. I am not persuaded by this argument. The amendments to the 1996 Act introduced in 2002 were certainly intended to introduce a measure of choice into the allocation of social housing. However, those amendments left intact the principle of the identification of comparative need, as is apparent from the statutory scheme and the revised Code of Guidance. Whatever may be the virtues of self-assessment, it is no substitute for the principle of the identification of comparative need and does not absolve authorities from their duty to establish schemes which take account of comparative need.[36]Thirdly, Mr Bhose contends that the Defendant authority’s duty in this regard is discharged in practice by the procedures which are actually followed. The mechanisms by which the Council seeks to identify those in greatest need and to take account of a household’s comparative need are, he says, to be found in the way in which the Panels operate, which is routinely to consider all of the relevant circumstances of a household to determine whether there is more than one element deserving of assistance. In this regard he relies in particular on a letter dated 2nd November 2004 from Mr Bourne to the Claimants’ solicitors in which Mr Bourne explained the working of the scheme. The letter states:
“We feel that there are circumstances where an applicant may meet minimum criteria in more than one category but where the need is not excessive in either. There are other applicants who have high need (but insufficient to warrant additional preference) who, in a points-based system, would have more need than the case with low need in two categories. (sic) As a means of addressing this, we refer cases with complex and multiple needs to our multi-disciplinary Panels (Disability, Social Need, Harassment and Sheltered Housing). The Panels have the authority to award additional or reasonable preference, based on either the intensity of need in one of the reasonable preference categories or on the complexity of needs in two or more.”
[37]In his witness statement Mr Bourne states that the Disability Panel is entitled to and routinely does consider all of the relevant circumstances of a household to determine whether there is more than one particular element to an application deserving of assistance on grounds of reasonable preference. If the Panel so concludes, it may award additional preference status. Similarly, he states that the Social Needs Panel has authority to award additional or reasonable preference, based on either the intensity of need in one of the reasonable preference categories or on the complexity of needs in two or more.[38]There are, however, a number of difficulties with this response.[39]First, the practice identified appears to be the exercise of a broad discretion to promote a household from one category to another. I am unable to accept that this a satisfactory way of curing the deficiencies of the Defendant’s scheme. In the absence of published criteria, the mechanism described in the letter depends excessively on discretion. A similar question arose in R v Islington LBC, ex part Reilly & Mannix. That case was concerned with a points-based system. There was, there, a discretion to award as many additional points as were needed to bring a particular household to the head of the queue and to gain the needed priority. Richards J considered this an unsatisfactory approach. “Nor do I think that the residual discretion can be viewed as a rational way of addressing the balance. Even leaving aside my concerns about the restrictive nature of the discretion available, in practice, under the scheme as presently operated, the residual discretion is not a satisfactory way of bridging the gap between the outcome of the category-based points calculation and the true assessment of need. It is too vague and uncertain and results in a disproportionately large element of need being subject to assessment on an undefined and unguided discretionary basis.” (at p. 666) Mr Bhose sought to distinguish the residual discretion in Reilly & Mannix on the basis that in the present case the discretion, if exercised, would not take a household to the top of the queue but merely into a higher category of priority. I am unable to accept that this is a material distinction. To my mind the situations are very close, notwithstanding the fact that Reilly & Mannix was concerned with a points system. As in Reilly & Mannix, the discretion identified in the letter of 2nd November 2004 is too vague and would result in decisions as to comparative need being taken on “an undefined and unguided discretionary basis” which could lead to inconsistency and arbitrary results.[40]Secondly, section 167(1) requires that the scheme shall include the procedure to be followed in allocating housing accommodation and states that this includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are to be taken. This approach is also reflected in the Code of Guidance at para 5.1. Mr Bourne in his witness statement and Mr Bhose in his oral submissions very frankly accepted that the scheme could be clearer in explaining how the Panels operate in cases of composite need. Mr Bhose suggested that the statutory requirement was satisfied by the following statement in the scheme:
“Registration of all cases will be subject to assessment by the Council. This will normally require applicants to provide various documents to support their applications and to confirm their current circumstances.”
To my mind this passage does not begin to meet the statutory requirement. It appears in a section relating to eligibility to apply and contains no explanation as to how need is to be assessed. I am satisfied that the published scheme does not set out the criteria for the award of additional preference when an applicant comes within one or more of the reasonable preference categories.[41]Thirdly, section 167(8) provides that a local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme. In the present case, I consider that the use of the discretion described by Mr Bourne would be a departure from the published scheme.[42]For all these reasons I have come to the conclusion that the Defendant’s scheme does not permit a proper judgment to be made in accordance with Part VI of the Housing Act 1996 on the respective needs of persons whose needs are cumulative, and that, accordingly, it is unlawful in that it excludes from consideration matters which Parliament has required the Defendant to take into consideration.[43]Mr Gannon also submits that the Defendant’s scheme fails to define the criteria for awarding reasonable preference. In view of the conclusion to which I have come in relation to his first submission I can deal with this point relatively briefly.[44]In approaching this issue it is important to bear in mind that the duty imposed on the Defendant in this regard is not a particularly high one. As the Court of Appeal made clear in R (A) v Lambeth LBC (at para 25) the scheme must set out all aspects of the allocation process but it is not necessary to do more than to explain what criteria apply to each group and to indicate that an officer will allocate in accordance with those criteria. Nevertheless, I have come to the conclusion that the duty is not discharged in the present case.[45]Whereas the Defendant’s scheme sets out the criteria for the award of additional preference, in the case of reasonable preference the scheme contains no corresponding statement of the relevant criteria. Mr Bourne, in his witness statement, accepts that the scheme does not record, in the context of each Panel, what is the threshold for an award of reasonable preference. He explains that this is simply because it is a “medium level of need”, falling short of the threshold for the additional preference band. However, he refers to a draft document which the Defendant intends to finalise explaining further the workings of the scheme. That document defines reasonable preference as “a case where either one or a number of difficulties have arisen, leading to a deterioration in the household’s lifestyle and inability to maintain a satisfactory quality of life in the longer term”. He states that this reflects the current approach of the Panels. To my mind, this merely serves to confirm the inadequacy of the Defendant’s scheme in this regard.[46]In his oral submissions Mr Bhose contended that the threshold for the reasonable preference band may easily be determined by a simple process of elimination. In his submission, the criteria for the additional preference band are clearly identified by the scheme. Moreover, the no preference band is defined in the scheme as including those applicants who are “adequately housed or where the Council does not have a duty to provide them with secure accommodation”. On this basis, he maintains, it is possible to identify the criteria for the intermediate band of reasonable preference. However, to my mind, this does not meet the requirements of the legislation. It does not explain what criteria apply or indicate that they will be applied. Accordingly, I have come to the conclusion that, for this further reason, the Defendant’s scheme fails to comply with the requirements of section 167(2).[47]For these reasons, the application for judicial review will be allowed. I will hear counsel as to the appropriate relief.54. MR JUSTICE LLOYD JONES: For the reasons set out in my written judgment, the application will be allowed. I should make clear that what I have handed to counsel this morning is not the final version and is subject to correction and amendment. I am sorry you did not get it any sooner but I was anxious to get it out today because I am not sitting in London for the rest of the term. It would assist me greatly if you could submit corrections to my clerk so we could produce the corrected version, and copies of that could be available to reporters and the public on application to my clerk.55. MR GANNAN: My Lord, there is a question of relief. I do not know if you want to hear me on this point following your Lordship's judgment.56. MR JUSTICE LLOYD JONES: Yes. I have two draft orders.57. MR GANNAN: We have not come to an agreement as to what the form of relief should be. So the order which simply lists paragraphs 1 through to 6 is my suggested order. The shorter one which has the declaration at the outset is my learned friend's.58. My Lord, if I can just briefly say why my version should be preferred. I have simply included a straightforward declaration as to the lawfulness of the defendant's approach. In my submission, that is preferable to having a declaration which attempts to echo what your Lordship's judgment says in words summarised in a couple of short sentences, to reflect the effect of that judgment. If there is to be a rider at all as to the simple declaration it should simply be that it is declared to be unlawful as set out in the judgment and no more than that.59. Mr Bhose's order does not contain any mandatory relief. I am sure he will explain why that is. The authority will become aware that they have an unlawful scheme and obviously an obligation will fall upon them. They anticipate it to be a major task, which I do not dispute. It seems to me that there ought to be some form of mandatory relief, even if it is not in the form that I have suggested in my proposed minute of order. To have an order which has none at all, which Mr Bhose's does not, is not an acceptable way of carrying your Lordship's judgment into effect. It may be that you can give us an indication as to whether it should have some mandatory form in the order and inform us what that might say.60. MR JUSTICE LLOYD JONES: Should the scheme be quashed? Should there be a quashing order?61. MR GANNAN: There may be a practical difficulty in that obviously allocations are going to have to continue to be made by the authority. The fact that there will be a declaration will be enough in terms of what is going to happen with allocations. I am not pushing for that.62. MR JUSTICE LLOYD JONES: Thank you. Mr Bhose.63. MR BHOSE: My Lord, in terms of a quashing order, that has never been sought by the claimants. The difficulty is that if my Lord were to make quashing order, that would leave the Council with no scheme, as to put it in an impossible position as to properties which become vacant. The court has not gone so far as to quash schemes before.64. My Lord, in terms of the grant of relief, in my draft I have sought accurately to set out the effect of my Lord's reasoning in paragraphs (a) and (b) and that it is preferable to have a declaration in precise terms rather than more general terms by my learned friend.65. As to mandatory relief, my position is that either my Lord should simply refuse mandatory relief or, alternatively, to adjourn the issue of mandatory relief for a period of six months, with the claimant then having permission to restore any application on notice.66. MR JUSTICE LLOYD JONES: If I was going to do that, I would want to be sure there was some machinery.67. MR BHOSE: My Lord, certainly. In terms of the principle of mandatory relief, the effect of my Lord's judgment is that the scheme is unlawful and the authority is bound to revisit it immediately and put in place a lawful scheme. These three claimants are not individuals who, under any new scheme, would have any particular preferences. They should not have any priority over anyone else. The proper course is to leave us to get on as fast as possible with putting in place our new scheme. They will be reassessed, as will everyone else. If the solicitors think we are taking too long or we do not put forward the reasons for taking too long, it is open to them to bring proceedings to challenge the failure to bring a new scheme.68. If my Lord is against me, one turns to adjourning the issue generally. Although we have had a short time to consider my Lord's judgment, we do fear that to put in place a lawful scheme will take a minimum of one year. There needs to be consideration of the terms of the judgment and whether or not, in the light of the judgment, it is possible to have any scheme that has broad banding. My Lord has indicated the composite assessment of need goes not simply to the top but throughout. That is a very large question for the local authority to address. Indeed, in the Lambeth case, Lambeth did have to go back to a points based scheme, starting from scratch. Having decided what the approach is, a new scheme has to be drafted. It is the scheme itself that is going to take a great deal of time and internal consultation within the authority. When a draft scheme is then drafted, there is an obligation to consult. Under section 167(6) of the Act, whenever there is a major change of policy there is an obligation to consult with the residents of the area. In addition, the local authority would have an obligation to consult with all of its tenants on there being a major change in policy. As with the old scheme, it would consult with all of those currently on the register. That consultation, as with the last exercise, was not simply the case of sending out a letter but to have meetings, talks, further consultation if necessary. This gives it either 10 to 12 weeks. That is a significant period of time. Then there needs to be consideration of the consultation and a decision made and the new scheme published and approved.69. That is not the end of the difficulty. All of these schemes are surrounded by means of computer programmes, not just the software but the policy. There is an obligation then to have all of the software re-written to cater for the new policy. I know from the Lambeth example, where I was instructed by that authority, that that process took about a year. We simply are unable to say how long that will take or how we will undo it. Once all of that is done, there is an obligation to reassess everyone who would otherwise have been within the additional preferences categories. As my Lord knows, that is a large number of applicants: about 10,000.70. We are not seeking to be difficult, we are literally doing the exercise today. We say at least a year. Adjourn it generally, and if my Lord is against me on both of those, I would still ask my Lord to adjourn it so we can supply witness evidence to explain in detail the difficulties we will face.71. MR JUSTICE LLOYD JONES: Yes. I am not going to order mandatory relief because I want to ensure that there is machinery so the matter can be brought back before the court by the claimant. What do you propose?72. MR BHOSE: The application for mandatory relief to be adjourned generally with permission to restore within six months on notice. We will keep the claimant informed as to what we are doing. If they think we are doing nothing they can come back. If they are satisfied we are doing all we can, one knows they would not come back. That is the machinery I suggest.73. MR JUSTICE LLOYD JONES: The exercise is going to take longer than six months?74. MR BHOSE: Indeed. If it was permission to apply for a year, in theory it would sit in our hands for a year. We would not do that if my Lord is content with a year, but if my Lord did not want it to go off into the ether --75. MR JUSTICE LLOYD JONES: Yes. Any further observations to make?76. MR GANNAN: Well, my Lord, no. I think we obviously do want to have some contact with this process and I would ask, in fact, for appearance to be less than six months. At the moment they have no duty to come back until six months have passed. We would like to know where we stand before that. I accept everything that my learned friend has said about this process that needs to be gone through. If we can restore in about four months that will be a fair balance between allowing the authority to start on the progress with what needs to be done and us having the opportunity to come back. We are satisfied by what we were told by the authority, but at the moment it does not have to do anything until that passage of time has gone.77. MR JUSTICE LLOYD JONES: Yes, thank you. Very well. There will be a declaration. It will be in the terms proposed by Mr Bhose. The application for mandatory relief will be adjourned generally. There will be liberty to restore after four months in relation to the question of mandatory relief.78. MR BHOSE: My Lord, on the issue of costs, the only point that I would make is that on the costs before permission, it was agreed that there would be no order for costs to date but only onwards. Also, the costs of Mr Mullins' witness statement, that was the one that enclosed the letter, which you received on Thursday at 3 pm.79. MR JUSTICE LLOYD JONES: What do you say about that?80. MR GANNAN: We are only dealing with costs post permission but, in the whole scheme of things, the costs relating to that statement are minimal and would probably involve more costly work in assessing how much it involved. I would have thought a simple order for us to have our costs post permission is all that is required.81. MR JUSTICE LLOYD JONES: Very well. Defendant to pay the claimant's costs post the grant of permission. They are to be subject to detailed assessment if not agreed and to be paid by the defendant to the claimant's solicitors. I am not going to disallow the costs of the statement.82. MR GANNAN: Could we also have a detailed assessment of our publicly funded costs?83. MR JUSTICE LLOYD JONES: Yes. There will be detailed assessment of the claimant's publicly funded costs.84. MR BHOSE: My Lord, the final matter is that we ask for permission to appeal. Your Lordship's judgment throws up issues about a broad band scheme. It throws up the meaning of composite need. These are matters of public importance to local authorities. Accordingly, we would ask for permission.85. MR JUSTICE LLOYD JONES: I am going to refuse permission. It seems to me that there is no real prospect of success. You will have to go to the Court of Appeal. Thank you, Mr Bhose.86. MR BHOSE: May we thank my Lord for preparing the draft judgment in a very short period of time. We are very grateful indeed.87. MR JUSTICE LLOYD JONES: I was anxious that it should not be left or it would have been left for some considerable time. I am concerned that the arrangements for having it done were not ideal. Copies of them will be available as soon as the corrections are sorted out. Thank you very much for your assistance.

Cited in 7 later judgments