West Law Report

R (YAZAR) v SOUTHWARK LBC

Posted in judicial review, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 7:12 PM BST 09/04/2008
Queen’s Bench Division (Admin)
Simon J
March 19, 2008

Housing allocation – Housing policy – Social services – Property allocation scheme – Social services nominations – s. 167(1) Housing Act 1996

FACTS

The claimant (Y) applied for judicial review of a decision of the defendant local authority on the basis that it had failed to make a lawful determination of her application for accommodation under the Housing Act 1996 Pt VI. Y had applied to the local authority for a transfer of accommodation on the basis that her current fourth-floor flat failed to satisfy the needs of her family. Consequently, Y was assessed, on medical grounds, as requiring ground-floor accommodation with a garden. The local authority then switched to a choice-based letting policy that prioritised the allocation of properties using a hierarchy of bands. Initially, Y was placed in band three but was upgraded to band two on the basis that her family had medical needs and that her existing property was overcrowded. In order to acquire an appropriate property quickly, Y asked the social services department to make a formal nomination to the local authority recommending that she be upgraded to a band one priority. Although the department did send a letter supporting Y’s promotion application, it did not make a formal nomination on her behalf. There were no written procedures for the making of formal nominations and Y received an explanatory letter stating that the department reserved the issuing of formal nominations to cases where there was a significant crisis or life and limb situations. Y submitted that (1) the absence of any written procedure for the making of formal nominations was contrary to the statutory requirement of a clear and transparent allocation scheme; (2) the department failed to give adequate reasons why it had refused to make a formal nomination on Y’s behalf and had failed to demonstrate a proper assessment of her application in accordance with its published policy. Furthermore, the explanatory letter purported to fetter the discretion of the decision-maker by reducing the number of nominations it could make and adding a requirement that there had to be a significant crisis or life-and-limb situation; (3) the system by which property was allocated under the choice-based letting policy was fatally flawed since it failed to provide a rational mechanism for ensuring that genuinely needy applicants were given a head-start over applicants who had no assessed needs.

ISSUE

Whether the local authority had failed to make a lawful determination of Y’s application for accommodation under the Housing Act 1996 Pt VI.

HELD (application refused)

(1) Inclusion in the category of social service nominations depended on the acceptance of the nomination by the housing options manager and this was a sufficient compliance with the requirement to have a procedure for the purposes of s. 167(1) of the 1996 Act. However, the basis on which the social service nominations were made and by whom they were made were unclear to the point of obscurity. The local authority’s allocation scheme was partially flawed. However, the department had since explained how it had made its decision in the instant case and the proper way by which it would generally make nomination decisions. Accordingly, no useful purpose would be served in granting the relief sought by Y.

(2) The department was not bound to express its reasons for refusing to make a formal nomination in every case. Such a requirement would have placed an additional and undesirable burden on an already overburdened department. However, if the department had been asked to provide its reasons, then it would have been obligated to provide them. In the instant case, the department had correctly conceded that the explanatory letter disclosed the application of a policy that was plainly flawed, since it had purported to place a fetter on the discretion of the decision-maker by the application of uncertain criteria. However, the department had since properly explained its reasons for refusing to nominate and there was no evidence to suggest that Y would be any better off following reconsideration.

(3) Parliament had given responsibility to the local authority in order to decide how best to allocate accommodation. The local authority had opted to use a policy of choice-based letting and it was entitled to do so. Whilst it was true that the system clearly favoured some applicants and disadvantaged others, a court would be slow to accept an invitation to intervene; not least because it might adversely affect the wider exercise of the scheme, R (on the application of Lindsay) v Lambeth LBC [2002] EWCA Civ 1084, [2002] HLR 57 applied. In any event, a system that catered for promotion within a banding system following a nomination made on the basis of criteria set out in a lettings policy was neither contrary to the law nor irrational. Accordingly, a claim premised on an attack of that system was destined to fail.

Robert Latham (instructed by Anthony Gold) for the claimant. Donald Broatch (instructed by in-house Solicitor) for the defendant.

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