London Borough of Lambeth v "A"

A housing allocation scheme must confer a real and identifiable reasonable preference on applicants within the statutory categories. It cannot permit applicants outside those categories to compete on equal terms. Offering every applicant the same opportunity to widen their choice of property is not a statutory preference.

The scheme must also provide a rational mechanism for comparing housing need. It must recognise that statutory needs may operate cumulatively, although membership of more categories does not automatically establish greater need. Additional preference need not override every competing consideration. Authorities retain discretion over the structure, weighting and operation of their schemes, subject to these requirements and the published scheme.

The London Borough of Lambeth appealed against declarations by Sir Christopher Bellamy in A's case and Sullivan J in Lindsay's case that its housing allocation policy was unlawful. The conjoined appeals concerned a date-order scheme which divided applicants into groups and relied substantially on applicants widening their choices of property and location.

A was disabled, lived with her daughter in one hostel room and qualified under nearly every category in section 167(2) of the Housing Act 1996, including the category attracting additional preference. Lindsay was homeless, slept rough when unable to stay with others and qualified under two categories.

The principal questions were whether the scheme secured reasonable and additional preference, rationally assessed cumulative need, contained sufficient published detail, and permitted changes to allocation targets and group priority.

1. The appeals were dismissed unanimously. Collins J delivered the principal judgment. Pill LJ agreed with his reasoning and gave additional reasons. Judge LJ agreed with both judgments.

2. Section 167(2) of the Housing Act 1996 required the scheme to confer positive favour, or a reasonable head start, on applicants within the statutory categories. The preference was reasonable rather than absolute, so relevant countervailing matters could be considered. Nevertheless, Lambeth's scheme failed because applicants outside the statutory categories could compete on equal terms with applicants entitled to preference. The proportion of non-qualifying applicants was immaterial to that conclusion.

3. Allowing applicants to widen their choices of property, size or area did not confer the required preference. The same opportunity was available to all applicants. More fundamentally, an applicant's willingness to accept inferior or less desirable accommodation was conceptually different from statutory preference.

4. The scheme also required a rational mechanism for identifying comparative need. Statutory needs could operate cumulatively and had to be considered together. A person satisfying more categories did not automatically have greater need, because severity, waiting time and reasonable countervailing considerations could affect the comparison. Lambeth's reliance on self-assessment was too haphazard, especially where family or medical circumstances restricted an applicant's practical choices.

5. The statutory additional preference did not invariably place its beneficiaries ahead of every other applicant, irrespective of comparative need or waiting time. Collins J and Pill LJ considered that a referral-based arrangement along the lines of group F was capable of providing the required additional preference, although they did not approve group F within the unlawful scheme as a whole.

6. The scheme did not require the precision contended for by the respondents. General group criteria and officer assessment could be lawful. Annual targets and ordinary adjustments did not have to be reproduced in the published scheme. A zero target caused by a group's earlier over-performance was therefore lawful.

7. The September 2000 direction did more than adjust targets: it changed the published order of allocation by placing the homeless group ahead of the supply-transfer group. As the published scheme did not permit that variation, it contravened section 167(8). A scheme could lawfully authorise reasonable crisis-related variations if it expressly provided for them.

• Court of Appeal (Civil Division): Dismissed both appeals and upheld the declarations that Lambeth's allocation policy was unlawful: [2002] EWCA Civ 1084.
• Queen's Bench Division — A: Sir Christopher Bellamy declared the allocation scheme unlawful, including because the September 2000 change departed materially from the published scheme.
• Queen's Bench Division — Lindsay: Sullivan J declared the allocation scheme unlawful on grounds concerning statutory preference and comparative need.