Onuegbu, R (on the application of) v London Borough of Hackney

A local authority may take rent arrears into account under a lawful housing-allocation policy, provided the policy is applied flexibly and exceptional circumstances are considered. A policy which leaves an application in the allocation queues but permits the authority to bypass it when it reaches the point of an offer is materially different from suspending the application. Judicial review requires a subsisting decision capable of challenge. Where no offer is yet due and the authority has made no operative decision to exclude the applicant, there is no reviewable decision. The court may nevertheless identify past procedural irregularities where they have caused no legally material prejudice.

The claimant, a secure tenant of the defendant local authority, sought judicial review of an alleged decision that his application to transfer to alternative council accommodation would not be considered because of rent arrears. The defendant said that no such decision had been made. Its policy left the application in the relevant allocation queues but permitted it to be bypassed if, when it reached the top of a queue, substantial arrears remained, subject to exceptional circumstances.

The claimant also complained that the defendant had failed to provide its housing policy, but that issue had become redundant when the policy was supplied. The central issue was whether a subsisting decision existed which was unlawful and amenable to judicial review.

1. The claim was dismissed. No subsisting decision had been made refusing to consider the claimant’s application for transfer. The application remained well below the top of the relevant queues, so the point at which bypassing might arise had not been reached.
2. A local authority’s allocation policy may take rent arrears into account, provided it is applied flexibly. The defendant’s policy under section 167 of the Housing Act 1996, as amended by section 16(3) of the Homelessness Act 2002, lawfully allowed substantial arrears to affect eligibility for an offer, while preserving consideration of exceptional cases.
3. The court distinguished between the former policy of suspending an application and the later policy of bypassing it. Under the later policy the application remained in the queues and was considered when it reached the top. The authority would then have to consider the extent of any arrears, any possible set-off arising from repairing breaches, compliance with an arrangement to clear the arrears, and exceptional circumstances.
4. The application had probably remained suspended for longer than it should have after the county court judgment which cleared the arrears, and had probably not been treated consistently with the revised policy until June 2003. Those were probably technical irregularities. They caused no legally material prejudice because the application would not have reached the point of an offer during the relevant period.
5. The alleged statement made in August 2004 was an inaccurate or inelegant description of the bypassing policy, not a decision with operative effect. The subsidiary complaint concerning disclosure of the policy was redundant.

not stated in the judgment.