Hussain, R (on the application of) v City Of Westminster

A local authority’s housing policy is ordinarily a guide to the exercise of discretion, not a rigid rule. The court will intervene where evidence shows that officers have applied the policy inflexibly as though it were mandatory. A challenge requires cogent evidence of that departure from lawful decision-making. A local authority may regard accommodation as suitable where it has considered relevant medical evidence and rationally assessed the practical difficulties involved.

The applicant sought permission to appeal against Mr Justice Lightman’s refusal of permission to bring judicial review proceedings. He challenged Westminster City Council’s decision that, after he refused a fourth housing offer, it would make no further offers. The proposed grounds alleged irrationality in treating a ground-floor flat requiring five steps for access as suitable, and the continued application of an allegedly rigid housing policy previously criticised in proceedings concerning the applicant.

The application also sought an extension of time and permission to rely on further evidence. The central issues were whether the council had acted irrationally and whether there was sufficient evidence that it had unlawfully treated its policy as a rule.

1. Application refused. There was no basis for granting permission to appeal. The application was also out of time, although that issue was left aside.
2. The irrationality challenge could not succeed. Westminster City Council knew of the applicant’s medical condition, had regard to the medical report, and relied additionally on the observation that he had negotiated the five steps with little difficulty. The conclusion that the accommodation was suitable was rationally open to the council.
3. Section 103(5) of the Housing Act 1986 permits a local authority to remove a person from the housing register in such circumstances as it thinks fit. That discretion does not authorise arbitrary removal.
4. A housing policy is a guide to the exercise of discretion, not a cage. The fact that a policy states that certain consequences will normally follow, while permitting exceptional departure, supports the conclusion that it is not itself rigid.
5. If the authority’s written policy is in practice applied as an inflexible rule, the court will intervene. The applicant, however, produced no cogent evidence of such application. The council had made three further offers after earlier refusals, which strongly demonstrated that no automatic one-offer or two-offer rule was being applied.
6. The council was therefore entitled, at least for the time being, to regard the fourth offer as suitable and to decline to make further offers.

• Court of Appeal (Civil Division): permission to appeal was refused. The application concerned Mr Justice Lightman’s decision of 14 March 2002 refusing permission to seek judicial review.
• Queen’s Bench Division: the decision under challenge was the refusal of permission to bring judicial review proceedings.