Lin v Barnet London Borough Council

A housing allocation scheme must give applicants within Housing Act 1996, s 167(2), a reasonable preference, but need not guarantee them an allocation or secure accommodation. Authorities may set priorities between statutory preference groups and take account of other relevant factors, provided those factors do not defeat the statutory preference. Ordinary transfer points awarded to existing tenants were unlawful because they promoted those tenants above homeless applicants and applicants owed the full homelessness duty, without a countervailing statutory benefit. The scheme was otherwise lawful, including its use of income, residence, waiting-time, composite-need and exceptional-needs points.

Two linked judicial review claims challenged Barnet’s points-based scheme for allocating housing under Part VI of the Housing Act 1996. Both claimants were owed the full homelessness duty under s 193(2) and argued that the scheme failed to give them reasonable preference under s 167(2)(b), particularly because of the relative value of transfer, residence, income, waiting and exceptional-needs points.

The claimants also challenged the scheme as insufficiently precise and indirectly racially discriminatory. The court extended time because the alleged unlawfulness concerned a continuing policy. The central issue was whether the scheme preserved reasonable preference while allowing the authority to determine priorities between competing applicants.

1. The claims succeeded only in relation to the 100 ordinary transfer points. The court would make an appropriate declaration, leaving the authority to determine what consequential amendment, if any, was required.

2. Section 167(2) requires a reasonable preference, not a guarantee of allocation. Applicants owed the Part VII homelessness duty form only one statutory preference group. Under ss 167(2A) and 167(2E), the authority may determine priorities between groups and may recognise other relevant priorities, provided statutory preference is not displaced. The statutory duty gives eligible applicants a reasonable head start, not an assured tenancy.

3. Income, residence and waiting-time points did not remove the statutory preference. Income and residence points were expressly authorised, and waiting points could fairly reflect length of registration.

4. Exceptional-needs points were lawful. They addressed pressing welfare needs, legitimate estate-management aims or sufficiently small groups, and did not disturb the reasonable preference owed to applicants within s 167(2).

5. The scheme adequately accommodated composite needs through cumulative points, family-size points, bedroom requirements, room-sharing points and limited additional discretion. The different treatment of childless and family Part VII applicants reflected market-sensitive prioritisation between applicants within the statutory groups.

6. Transfer applicants had to be treated as new applicants after the amendment to s 159(5) by the Homelessness Act 2002. The routine award of 100 points to every existing tenant seeking a transfer gave a significant advantage over homeless applicants and applicants owed the Part VII duty. Unlike downsizing points, it had no countervailing benefit for those entitled to statutory preference and therefore unlawfully undermined s 167(2).

7. The scheme was not unlawfully uncertain or irrational under s 167(1). The lease-end rule was sufficiently intelligible and residual discretion was rarely used.

8. The racial-discrimination challenge failed. The evidence did not establish the alleged disadvantage, and the transfer and residence points were, in principle, proportionate means of pursuing legitimate aims. That conclusion did not cure the separate failure to preserve statutory preference caused by the ordinary transfer points.

First-instance judicial review determination of two linked claims. The court extended time and granted relief only to the limited extent that the award of 100 ordinary transfer points was unlawful.