Alam v London Borough of Tower Hamlets [2009] EWHC 44 (Admin)

[2009] EWHC 44 (Admin)Case No CO/7650/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 January 2009
Before
MR TIMOTHY BRENNAN QCSitting as a Deputy Judge of the High Court
Between
RAIHAN ALAMClaimantTHE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF TOWER HAMLETSDefendants
Mr Robert Latham (instructed by Tower Hamlets Law Centre) for ClaimantMr Kelvin Rutledge (instructed by the Borough Solicitor) for DefendantsHearing Hearing dates: 13, 14 November 2008
JudgmentMr Timothy Brennan QC:Introduction
[1]In this claim for judicial review the Claimant, Mr Raihan Alam, challenges the lawfulness of the allocation scheme published by the Defendant, the London Borough of Tower Hamlets (the Borough), for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. He also challenges the way in which the scheme has been applied to his particular circumstances.[2]A local housing authority, such as the Borough, is required by Part 6 of the Housing Act 1996 to have such a scheme (see s 167(1) of the Act) and may not allocate housing accommodation except in accordance with its scheme (s 167(8)). The importance of such a scheme is therefore obvious, particularly in a borough such as Tower Hamlets, where there is a limited supply of affordable housing. As the Introduction to the Tower Hamlets scheme records “Tower Hamlets is an area with a very large demand for affordable housing, acute housing need and limited affordable housing options. Whatever lettings policy is adopted, it is a way to distribute a small supply of homes.”[3]The challenge largely depends on the interaction between Part 6 of the Act (Allocation of Housing Accommodation) and Part 7 (Homelessness). It is the Claimant’s case that at all relevant times since (at the latest) 19 February 2007 he has been homeless within the meaning of Part 7. He has applied to the Borough under Part 6 for allocation of accommodation, hoping to be selected or nominated for a tenancy of a flat with one bedroom. It is his contention that, since he is homeless, the effect of Part 6 of the Act is to require that, as regards priorities for allocation, the Borough’s allocation scheme must be framed so as to secure that reasonable preference is given to him. He initially contended that, on its true construction, the Borough’s scheme failed to do this. After development of the argument in the course of oral and subsequent written submissions he contends that if the scheme does, on its true construction, comply with the statute it has not been applied correctly in his case. No objection has been taken by the Borough to changes in the way in which the application has been put.[4]The issues of principle and construction raised by the Claimant’s case are not unique to him and have been the subject of earlier debate between Tower Hamlets Law Centre (which represents the Claimant in these proceedings) and the Borough. Indeed, in February 2007 the Law Centre made written representations to the Borough identifying what were alleged to be flaws in the Borough’s allocation scheme.

The Claimant’s personal circumstances

[5]The Claimant, born in 1973, became homeless in February 2007 because he was required to vacate accommodation which was previously available to him. On 19 February 2007 he applied to the Borough for accommodation under Part 7 (Homelessness) of the Housing Act 1996. There was and is no suggestion that he became intentionally homeless (a term defined by statutory provisions which I address below) and it is accepted that he was eligible for assistance (again, a defined term) from the Borough. His further contention, based on aspects of his private personal circumstances which it is unnecessary to record, was that he was in priority need (as defined). He was provided with interim accommodation at the Mile End Guest House under the Housing Act 1996 s 188 (interim duty to accommodate in case of apparent priority need).[6]On 16 March 2007 (while his Part 7 application was still under consideration) the Claimant applied to the Borough for permanent accommodation; this triggered the regime under Part 6 of the 1996 Act.[7]On 23 July 2007, in response to his application under Part 7 of the 1996 Act, the Borough issued its decision under s 184: it was decided that the Claimant was indeed homeless and eligible for assistance (as he contended), however it was decided that he was not in priority need. This meant that the authority did not come under a duty to house him and that he was not entitled to retain his interim accommodation. He was required to vacate that accommodation but did not immediately do so.[8]On 22 October 2007, in response to his application for accommodation under Part 6 of the Act, the Borough allocated the Claimant to ‘Community Group 3’ in its allocation scheme.[9]In due course, after an internal review by the Borough of its decision under Part 7 (see s 202) the Claimant appealed to the County Court under s 204 of the 1996 Act against the Borough’s determination (for the purposes of the Part 7 application) that he was not in priority need. This appeal was determined by HHJ Roberts on 16 April 2008 and was unsuccessful; the issue whether the Claimant is in priority need has been determined against him and is final.[10]It must therefore be regarded as established for the purposes of these proceedings that the Claimant, who had been assessed by the Borough as homeless, not intentionally homeless, and eligible for assistance was not in priority need. He was therefore not entitled to the benefit of any duty on the part of the Borough to provide him with accommodation under Part 7 of the 1996 Act. There was a limited obligation to provide him with advice; it is not contended that this was not discharged.[11]Interim accommodation has been secured for the Claimant, variously under s 188, or with the permission or tolerance of the Borough, or pursuant to various orders of the High Court in two sets of judicial review proceedings, of which this case is the second. Orders were made by King J on 13 February 2008, by Foskett J on 6 May 2008 (which order was declared by Mitting J on 17 June 2008 to have automatically lapsed on dismissal of the County Court appeal), and then by Goldring J on 15 August 2008.

Homeless or not?

[12]At the date of the oral hearings before me, the Claimant was still in interim accommodation. Insofar as this accommodation was secured for the Claimant by the Borough under the interim duty imposed by s 188, it is common ground that, while he occupied it, he remained homeless within the meaning of Part 7. As was pointed out on behalf of the Claimant, any other conclusion would appear to have the consequence that no homelessness duty would be owed to any homeless applicant once he was placed in interim accommodation pending the determination of his application.[13]However, the Borough did not concede that there should be a similar disregard of accommodation occupied after the Claimant’s application under Part 7 had been determined. On the contrary, it was the Borough’s case that since 16 April 2008 at the latest (on which date HHJ Roberts dismissed the Claimant’s appeal under s 204) the Claimant has not been ‘homeless within the meaning of Part 7’ because his occupation of the Mile End Guest House has been within either s 175(1)(a) (‘… by order of the court’) or s 175(1)(b) (‘… by express or implied licence to occupy’).[14]I reject this contention for each of three reasons.[15]First, in my judgment the Borough is correct to concede that someone who is housed pursuant to the duty under s 188 does not cease to be homeless within the meaning of Part 7. This does not depend solely on an implication into the statutory scheme so as to avoid the absurd result that a homeless person who is temporarily accommodated would immediately lose his status of homelessness, and therefore lose the protection of Part 7. The concession is correct because provision of temporary accommodation under s 188 does not give the homeless person any rights such as are identified in s 175(1); he has merely a personal right against the local housing authority to have the authority secure that accommodation is available for his occupation pending a decision on his Part 7 claim. He has no right to any particular accommodation. Precisely the same reasoning applies to the agreement of the authority to let him remain temporarily in interim accommodation, and to the various orders of the court in the present case. Even though he had accommodation secured for him (initially under s 188, or by permission and latterly by order of the court), the Claimant had no right to be accommodated at the Mile End Guest House rather than at any other appropriate accommodation. So long as it acted rationally and proportionately, the Borough could have required him to vacate and to move elsewhere.[16]Secondly, temporary accommodation of this kind is not accommodation which it is reasonable for the Claimant to continue to occupy within the meaning of s 175(3), which clearly connotes some indefinite period of occupation rather than occupation pending consideration, or pending fulfilment of some other duty by the authority, or pending discharge by the court of some purely temporary order or undertaking. (The expansion of the meaning of the term ‘reasonable to continue to occupy accommodation’ by s 177 does not affect this point.)[17]Thirdly, if I am wrong in both my earlier reasons, I hold that it is indeed necessary to imply into the statutory scheme the qualification that the provision to the Claimant of merely temporary interim accommodation did not involve loss of his status of homelessness within the meaning of Part 7. There may be cases of fact and degree which would dictate different results. I am satisfied that in the present case the accommodation which was made available to the Claimant at Mile End Guest House did not have a sufficient degree of permanence and security to justify a conclusion that the Claimant has lost his status of homelessness by reason of s 175(1)(a) or (b).[18]Accordingly, in my judgment the Claimant has been homeless within the meaning of Part 7 at all relevant times since 16 March 2007.[19]The result of the rejection of his claim to be housed under Part 7 of the Act was to render, if possible, still more important to the Claimant the outcome of his application for the grant of accommodation under Part 6.[20]It is the Claimant’s contention that, in deciding what priority to afford to his application under Part 6, the Borough has wrongly allocated him to a priority group which is lower than that to which he is entitled. He claims he should be in Group 2 but the Borough has allocated him to Group 3, with a priority date of 16 March 2007, being the date of his application for assistance under Part 6.[21]In order, before resolving it, to make sense of that dispute it is necessary for me to set out the relevant parts of the statutory regime pursuant to which the allocation scheme is made, and then to discuss the terms of the scheme.

The statutory regime

[22]Part 6 of the Housing Act 1996 contains provisions concerning allocation of housing accommodation by local housing authorities. Compliance with the provisions of Part 6 is mandatory (s 159(1)). The provision of an allocation scheme is a core concept in Part 6.[23]Part 7 of the Act contains the provisions concerning homelessness. So far as relevant, an applicant who is eligible for assistance and who claims to be homeless, or threatened with homelessness, may qualify as the beneficiary of one of a range of housing duties for which the local housing authority becomes responsible. Whether he does so qualify, and for what he qualifies, will depend on a number of factors, including whether he is homeless, whether he is eligible for assistance, whether he became homeless intentionally, and whether he has a priority need for accommodation. He may turn out to be entitled to accommodation on an indefinite basis, or to accommodation on an interim basis while his application is assessed (as in fact occurred with the Claimant) and to advice, or to advice only.[24]The content of a local housing authority’s obligation under Part 6 to have and to comply with an allocation scheme is to be found in s 167 which, so far as relevant to this case, reads as follows: “167. Allocation in accordance with allocation scheme.(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 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). (2A) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2); … … (8) A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme.” (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).[25]It does not follow that an applicant who is owed a reasonable preference will necessarily be rehoused. A reasonable preference is precisely that; it has been paraphrased as ‘a reasonable head start’. As Dyson LJ put it in R (Lin) v Barnet LBC [2007] EWCA Civ 132, [28] “It is quite possible for a lawful scheme to give reasonable preference to a person within s 167(2) and for that person never to be allocated Part 6 housing. Such a person is entitled to no more than a reasonable preference. … Section 167(2A) expressly permits the local housing authority to determine priorities as between groups within s 167(2).”[26]Since under s 167(2)(a) priority is to be given to ‘people who are homeless (within the meaning of Part 7)’, it is necessary to turn to Part 7 in order to find what the term ‘homeless’ means. It is a defined expression (see s 218); the definition is in s 175 “(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he-(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,(b) has an express or implied licence to occupy, or(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.” (2) A person is also homeless if he has accommodation but- (a) he cannot secure entry to it or (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it. (3) A person shall not be treated as having accommodation unless it is accommodation which is would be reasonable for him to continue to occupy. (4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.” (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court, (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.” (a) he cannot secure entry to it or (b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.[27]I observe here, in anticipation of a submission on behalf of the Borough to which I return below, that there is no further content to the concept of being ‘homeless (within the meaning of Part 7)’ than is to be found in the definition in s 175. In particular, the concept of homelessness does not involve any consideration of whether the individual is intentionally homeless (which the Claimant was not) or in priority need (which the Claimant was not), nor of whether a local housing authority owes him any particular duty to house him consequent on him being homeless (which, as a result of the Claimant not being in priority need, it did not). Those factors are relevant to the existence and extent of the duty which may be owed to him, but not to the question whether he is homeless within the meaning of Part 7.[28]Section 167(2)(b) provides for priority to be given to a further group of people, in six different categories, namely those who are owed a duty by any local housing authority under s 190(2), 193(2) or 195(2) of the 1996 Act (or under s 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under s 192(3). Those categories can conveniently be taken in turn; one can ignore the criterion of eligibility for assistance (s 183(2)), which was satisfied in the Claimant’s case. It is for the local housing authority initially to decide whether it is satisfied that a given state of affairs exists, or that a given criterion is satisfied:• A person who is owed a duty under s 190(2) is homeless (within the meaning of Part 7) but became homeless intentionally (defined in s 191). He has a priority need (defined in s 189(1)). The local authority’s duty to such a person is to secure that accommodation is available for him for such period as will give him a reasonable opportunity of securing accommodation, and to provide him with advice.• A person owed a duty under s 193(2) is homeless, did not become homeless intentionally and has a priority need. The local authority’s duty is to secure that accommodation is available for occupation by him.• A person owed a duty under s 195(2) is threatened with homelessness (s 175(4)), did not become threatened with homelessness intentionally and has a priority need. The local authority’s duty is to take reasonable steps to secure that accommodation does not cease to be available for him.• The references to s 65(2) and s 68(2) of the Housing Act 1985 (a statutory predecessor of the 1996 Act) deal with the case of an applicant who is homeless, who did not become homeless intentionally and who has a priority need. Either the local housing authority or another, more appropriate, authority, must secure that accommodation becomes available for him.• Finally, an applicant who is occupying accommodation secured by an authority under s 192(3) will have obtained that accommodation because he was homeless and did not become homeless intentionally. Although he was not in priority need, the authority will have exercised its power to secure that accommodation is available for his occupation.[29]The result of s 167(2)(a) and (b) is therefore to provide that an allocation scheme must be framed so as to secure that reasonable preference is given to people who are homeless within the meaning of Part 7 (s 167(2)(a)) or who are owed duties under one of the six statutory provisions listed in s 167(2)(b), each of which duties is itself predicated on the criterion of homelessness (or, in the case of s 195(2), threatened homelessness which while not yet present, is likely to occur within 28 days).[30]The allocation scheme will of course have to make more extensive provision than this, not least to comply with s167(2)(c)-(e), and may, as a matter of discretion, go further still. But if the scheme is not framed so as to secure that reasonable preference is given to people who are homeless (or threatened with homelessness) as envisaged in s 167(2)(a) and (b), it will not comply with the statutory requirements.

The terms of the Allocation Scheme

[31]The Borough’s allocation scheme is contained in a document called ‘Tower Hamlets Common Housing Register Lettings Policy’ (the scheme). It has effect from 29 July 2002 and I am concerned with version 4, dated 12 September 2005.[32]After a preamble, the scheme provides as follows:
“2.2 How do you sort priority for housing? What is a Community Group? Community Groups are a way for us to make sure that we comply with the Government’s rules about who should be given reasonable preference for housing. Normally, each eligible application will be included in one of these four groups. 2.2.1 Group 1: Community Gain This group includes all applications from Anyone awarded an emergency priority to move; and Council and partner landlord tenants who have to move because they live in a block that is being demolished or refurbished; and Council and Registered Social Landlord tenants who are moving to a home with at least 1 bedroom less than their current home; and Council and RSL tenants with a need to move because of extenuating repair needs. 2.2.2 Group 2: Community Priority This group includes all [emphasis added] applications from Those with an assessed need to move because of extenuating social or health needs; and Accepted applications from one of the quota groups; and Those assessed by the Council as Homeless under the Housing Act Part 7 and other Homeless households who have an assessed priority need. 2.2.3 Group 3: Community Mobility This group includes applications from all others on the housing list whose applications are not included in groups 1, 2 or 4. 2.2.4 Group 4: Community General This group includes all applications from RSL tenants whose landlord is not a member of the Common Housing Register unless eligible to be included in Community Groups 1 or 2; Applicants who own or part own a residential property; Applicants without a local connection to the London Borough of Tower Hamlets as defined by s 199 of Part 7 of the 1996 Act. 2.3 How do you decide which group my application will be in? Group 1 [….] Group 2 Homelessness. The Council’s Homeless Service makes the decision. Group 2 Extenuating Repair Need [… a senior officer of the Council] Group 2 Extenuating Social Need […a panel] Group 2 Quotas [… a Lettings Sustainability Officer] Group 3 If you are not included in any of these other groups you application will normally be placed in Group 3. Group 4 […]”
This group includes all applications from Anyone awarded an emergency priority to move; and This group includes all [emphasis added] applications from Those with an assessed need to move because of extenuating social or health needs; and Accepted applications from one of the quota groups; and This group includes all applications from Group 1 [….] Group 2 Extenuating Repair Need [… a senior officer of the Council] Group 2 Extenuating Social Need […a panel] Group 2 Quotas [… a Lettings Sustainability Officer] Group 4 […]”

Group 2 Quotas [… a Lettings Sustainability Officer]

[33]No difficulty arises in the present case concerning Group 1 and Group 4. Those in Group 1 are given a high priority for readily apparent strategic reasons, and the Claimant makes no complaint of this. Those in Group 4 are given a lower priority than others; again the reasons are easy to discern and the Claimant is unaffected. It is not necessary to discuss the treatment of those groups any further.[34]The scheme contains a description of the arrangements for notification of vacancies to those interested in obtaining accommodation, and of the way in which an applicant may ‘bid’ for a property when it becomes available.[35]Where more than one applicant bids for a property, the bids will be ranked. Group 2 applicants will always come ahead of Group 3 applicants. Within the groups, bids will be given priority in accordance with the rules of the scheme policy as set out in paragraph 2.6 of the scheme, as follows:
“Group 2. Sorted by who has the greatest number of health awards & then by who lacks the most bedrooms & then by the earliest referral date. Group 3. Sorted by who lacks the greatest number of bedrooms.”
Group 3. Sorted by who lacks the greatest number of bedrooms.”

How the Claimant was dealt with

[36]On 22 October 2007 the Claimant was notified that his application was put in Community Group 3, the category for those who do not qualify for the higher express priority given to Groups 1 or 2, and who do not deserve the lower priority afforded to Group 4.[37]Within Group 3, the Claimant (who has no bedroom available to him) would be treated as lacking one bedroom, and would therefore be ranked within Group 3 accordingly. In practice, within Group 3, it seems likely that his ranking would be comparatively high. As a single person proposing to live alone, he could not realistically expect to be allocated a property with more than one bedroom. In applications for one-bedroom flats his ranking within Group 3 would be higher than that of a person who was not homeless, but who wanted to obtain a one-bedroom flat for personal reasons, for example, in order to move out of his parents’ home. However, even if it is correct that he would be comparatively highly ranked within Group 3 (and various scenarios were canvassed in argument where the Claimant might not rank higher than others in Group 3, even in an application for a one-bedroom flat) a high ranking in Group 3 is no use to the Claimant if, in every application which he makes for a one-bedroom flat, his application is defeated by the prior claim of an applicant who has been allocated to Group 2. His contentions are that he should be in Group 2 and that, if on its true construction the allocation scheme does not put him there, the allocation scheme is unlawful.[38]At first sight, the allocation of the Claimant to Group 3 seems odd, because he appeared to qualify for Community Group 2 in accordance with its express terms. Community Group 2 includes “Those assessed by the Council as Homeless under the Housing Act Part 7 and other Homeless households who have an assessed priority need.” This was the Claimant’s position; the Borough’s Homeless Service had already determined that the Claimant was homeless within the meaning of Part 7, he had not lost this status and he would therefore appear to fall within the first limb of this provision. The absence of an assessed priority need was irrelevant; if he qualified under the first limb he did not need to qualify under the second limb.[39]I turn to deal with the parties’ respective contentions as to how the scheme should be construed, as ultimately refined after oral argument and their further, and very helpful, written submissions.

The Claimant’s construction of the Scheme

[40]As to how the terms of the scheme should be construed, I accept the following uncontroversial submissions which were made on behalf of the Claimant. The scheme should be construed purposively and as a whole. Where two meanings are possible one of which is lawful and one of which is unlawful, the former should be preferred. In construing a clause, all parts of it should be given effect where possible and no part of it should be treated as inoperative or surplus. I add one further point of construction of my own: the scheme can be expected to make provision for the favoured statutory groups once and only once; repetition is likely to be avoided.[41]I also accept that it is not appropriate to construe a scheme such as this as if it were a statute. That said, I bear in mind that (in contrast to the matters dealt with in R (Raissi v Secretary of State for the Home Department) [2008] EWCA Civ 72, [2008] 3 WLR 375 at [108] on which reliance was placed) the allocation scheme is promulgated pursuant to statutory obligations which expressly set out matters for which the scheme must provide. It can be expected that the scheme will have been framed with the express statutory requirements in the forefront of the draftsman’s mind. It is appropriate to expect some precision in the way in which those matters are expressed.[42]Applying that approach, it is submitted on behalf of the Claimant that the critical paragraph of the scheme “Those assessed by the Council as Homeless under the Housing Act Part 7 and other Homeless households who have an assessed priority need.” can be read in either of two ways, each of which leads to a result which is satisfactory to him.[43]The Claimant’s preferred option is that the words ‘those assessed as Homeless under the Housing Act, 1996 Part 7’ refers to those falling within s 167(2)(a) (namely ‘people who are homeless (within the meaning of Part 7)’). The following words ‘and other Homeless households who have an assessed priority need’ are to be taken as referring to those assessed as falling within one of the priority categories specified in s 167(2)(b). It seems to me to be clear that the Claimant is correct in the submission that the words ‘who have an assessed priority need’ govern the second limb of this provision, and not the first limb. Only a strained reading would lead to a different conclusion and, if it is possible to make sense of the clause, read against the statutory background of s 167(2), I see no reason to strain.[44]The difficulty with this construction, if correct, is however that substantially the whole of the second category is already contained within the first category. All of those homeless persons who are listed in s 167(2)(b) will necessarily have been assessed as homeless under Part 7 of the Housing Act 1996 (or the equivalent provisions of the Housing Act 1985). So the second category would almost entirely duplicate the entitlement of those who are already entitled to be placed in Community Group 2 by virtue of being included in the first category. Another difficulty is that this construction would require a restricted and non-statutory meaning to be given to the term ‘priority need’. This term is defined in s 189 of the 1996 Act (and similarly in s 59 of the 1985 Act). However, if that statutory meaning were to be attached to use of the words ‘priority need’ where they appear in the second category, this would have the effect of excluding from that category those falling within s 192(3).[45]I recognise that this construction does have the advantage of addressing, in part at any rate, another difficulty, namely that those who are owed a full or a limited housing duty under either the 1996 or 1985 Acts would ordinarily be regarded as ceasing to be homeless once and whilst accommodated pursuant to such a duty. This is to be contrasted with those accommodated under an interim duty under s 188, who remain homeless. Accordingly, one might expect the scheme to distinguish between those who are homeless, and those whose homelessness has been alleviated by discharge of the authority’s duty towards them arising from their priority need. However, the scheme uses the term ‘Homeless’ indifferently to refer to those included in both limbs, and I do not regard the point as having much weight.[46]The Claimant’s second way of approaching the construction of this part of the scheme is to regard the first limb, namely ‘those assessed as Homeless under the Housing Act, 1996 Part 7’ as referring to all those within the 1996 Act whether falling within s 167(2)(a) or s 167(2)(b); and the second limb, consisting of the words ‘other Homeless households who have an assessed priority need’ as referring only to those owed a duty under s 65(2) or s 68(2) of the 1985 Act. This approach has the advantage of attaching some meaning to each of the words (thus avoiding redundancy) and also of avoiding duplication. It gives the second limb some content, and in particular attaches meaning to the word ‘other’ (making the contrast with those covered by the first limb) and to the requirement that those referred to in the second limb have an assessed priority need. It largely mirrors the structure of s 167(2)(a) and (b). I remind myself of the need for particular caution here, because the impetus for this construction came initially from me in the course of argument. However, this remains the construction which I would prefer, subject to the submissions of the Borough to which I will turn.[47]One further observation is appropriate. Neither of the Claimant’s constructions gives any obvious weight to the priority required to be given to those falling within s 195(2) (those who are not homeless, but who are threatened with homelessness which is likely to occur within 28 days). Given the purpose of the scheme in allocating priorities among those who need accommodation, and recognising that decisions about the allocation of housing are unlikely to be made and fully brought into effect within as short a period as 28 days, I would be inclined, if the point arose, to construe ‘homeless’ in this part of the scheme purposively, so as to include those who are ‘threatened with homelessness’ in the statutory sense. However I have not received detailed argument on the position of those who are threatened with homelessness and I do not need to decide the point.

The Defendants’ construction of the Scheme

[48]On behalf of the Borough it was submitted that the category of “those assessed by the Council as Homeless under the Housing Act Part 7 and other Homeless households who have an assessed priority need” is much more limited than the Claimant contends. The Borough advanced the following submission. An applicant for housing (under Part 6 of the 1996 Act) cannot be regard as homeless for the purposes of the priority required by s 167(2)(a) unless he has made an application for assistance under Part 7 of the Act and that application has not been finally determined by the authority. Once that application has been determined (as it was in the Claimant’s case) by a finding that the applicant is homeless but is not in priority need, so that there is no housing duty owed to him under s 193, that applicant is not to be treated as homeless for the purposes of s 167(2)(a). This is because (so the submission continues) the term ‘homeless’ in s 167(2)(a) refers to a status which is relevant to a current application made under Part 7.[49]The underpinning for this submission is the proposition that the whole purpose of an inquiry into homelessness for the purposes of Part 7 is to enable the authority to decide whether it owes the person who has applied for assistance under Part 7 any of the duties for which Part 7 provides. Once the authority has decided that it does not owe that applicant a housing duty (in the present case, because the Claimant is not in priority need), there is no further content to the statutory question whether the applicant is a person who is ‘homeless (within the meaning of Part 7)’, which is the question to which s 167(2)(a) expressly directs attention.[50]I reject this submission.[51]In my judgment the Borough’s argument confuses two questions. One question is whether the applicant is entitled to assistance under Part 7. That question must be answered by reference to the statutory criteria. It is a necessary but not a sufficient condition for him to qualify for assistance under Part 7 that the applicant is homeless (within the meaning of Part 7), namely as defined by s 175. Other statutory criteria for assistance also have to be assessed including, for example, whether the applicant is in priority need. But if it is decided that the applicant is not entitled to assistance, or to further assistance, under Part 7 because one or more of the criteria are not satisfied, his status as a person who is homeless (within the meaning of Part 7) does not disappear. He was homeless (within the meaning of Part 7) when he applied for assistance and (in the absence of a relevant change in the circumstances relevant to that question) he retains that status when his application for assistance is rejected. The question whether he is homeless (for the purposes of s 167(2)(a) and his application under Part 6) is not answered by confusing it with the different question, namely whether the applicant is entitled to assistance under Part 7.[52]The point can be taken further. In my judgment (rejecting the Borough’s argument on this point, too) it is not necessary for an applicant for accommodation under Part 6 even to have made an application for assistance under Part 7 before he can be regarded as ‘homeless (within the meaning of Part 7)’ for the purposes of s 167(2)(a). Usually, no doubt, this will be the case. The question ‘homeless or not’ clearly has to be raised by the applicant somehow and, if raised in the context of his Part 6 application, must be assessed by such appropriate officers as the authority may decide. But he does not have to raise it by making an application under Part 7. He may be advised that he has no prospect of establishing the existence of a priority need and may not wish to make such an application. He may not wish to be granted temporary accommodation, or need or want to receive advice. An applicant may be one of the ‘hidden homeless’, a concept familiar to housing practitioners which denotes those who, while not living on the street, have no home of their own and are reliant for their accommodation on the assistance and tolerance of others on what may be a peripatetic and temporary basis.[53]The Borough’s contention, building on its submissions on the construction of the scheme, is that if the Claimant is indeed homeless, he is nonetheless afforded the reasonable priority granted by s 167(2)(a) because, having been allocated to Community Group 3, he is to be prioritised within that group by reference to the number of bedrooms available to him (namely, no bedroom at all) and the number he needs (namely, one bedroom). In my judgment this submission fails to afford adequate weight to the terms of the scheme, which expressly allocates a homeless applicant to Group 2. An applicant for housing, who has been assessed by the Borough as homeless within the meaning of Part 7 of the Act, might be puzzled to find that the Borough allocates him to Group 3 (which does not expressly deal with homeless people) rather than to Group 2 (which does).[54]It is contended in written submissions on behalf of the Borough that if the Scheme is construed in the way I have discussed above as my preferred conclusion, this will have the effect that only those who are owed a duty of one kind or another under the 1996 or 1985 Acts (plus anyone who is a beneficiary of the power under s 192(3) of the 1996 Act) would be given a reasonable preference for the purposes of s 167(2)(a) or (b). I do not agree. This submission wrongly regards the existence of homelessness (within the meaning of Part 7) as being dependent on the existence of a duty or power under Part 7. Homelessness is relevant to the existence of such a duty or power, but is not exhaustive of the requirements which must be satisfied for the duty or power to exist.[55]Secondly, it is contended that the result of such a construction will be that all homeless persons have to be put into Community Group 2, regardless of which Act they qualified under and, more importantly, regardless of whether they have an assessed priority need or not. I agree with this submission. That is what the terms of the Borough’s scheme provide. However, this does not have the result that those such as the Claimant who are homeless (within the meaning of Part 7) but not in priority need are given the same priority as those who are in priority need. That they are in the same Community Group is the starting point for priority, but it is not the end point of the decision making process. Indeed, as already mentioned, the Scheme makes express provision for ranking applicants who are placed in the same group, as is envisaged by s 167(2A). Those within Group 2 are ranked by reference to health, by need for bedrooms, and by referral date.

Conclusion on the construction of the scheme

[56]Accordingly, it is my conclusion that the Borough’s Lettings Policy requires, in compliance with s 167(2)(a), those who are assessed by the Council as homeless under the Housing Act Part 7 to be allocated to Community Group 2 whether or not the Borough owes them a duty of any kind under Part 7. The Claimant, who was and is such a person, was wrongly allocated to Community Group 3 and the Borough was in error to that extent.

Delay and relief

[57]The Borough has contended, though only shortly, that the Claimant’s delay in bringing the present challenge has been such as should disentitle him to relief as a matter of discretion. He has already been granted permission to apply for judicial review. No hardship, prejudice or detriment to good administration (see the Supreme Court Act 1981 s 31(6)(b)) has been identified which would follow from a decision in the Claimant’s favour that, having been allocated to Community Group 3 he should have been allocated to Community Group 2. While he has been allocated to Community Group 3 he has, it appears, not bid for any properties; to the extent that this has disadvantaged him still further he has only himself to blame, but no-one else is affected. Insofar as other applicants have been dealt with in Group 2 while the Claimant and others like him have been excluded from it, their position has been more, not less, advantageous. Insofar as other applicants have been dealt with in Group 3 while the Claimant has been wrongly allocated to it, there is no evidence that there has been any disadvantage to them which could not have been remedied by their own challenge to the allocation, if so advised. I reject the contention that, as a matter of discretion, I should refuse relief to the Claimant.[58]If necessary I will hear submissions from the parties as to the terms of an order to give effect to the conclusions I have expressed.

Cited in 4 later judgments