Cali & Ors , R (on the application of) v London Borough of Waltham Forest

Under Part VI of the Housing Act 1996, an allocation scheme must enable the authority to assess comparative housing need and give reasonable preference to applicants with greater need. The statutory categories must not be treated as isolated compartments. A scheme must recognise cumulative or composite needs, including needs arising under more than one category or affecting more than one household member.

A narrow highest-priority band, followed by a broad band in which priority depends solely on waiting time, is unlawful if it fails to reflect additional qualifying needs. Unpublished, vague and unguided panel discretion cannot cure that defect. The scheme must also state the criteria for reasonable preference; those criteria cannot be established merely by eliminating the highest and lowest categories.

The claimants sought judicial review of the London Borough of Waltham Forest’s social-housing allocation scheme under Part VI of the Housing Act 1996. The scheme replaced a points-based system with three preference bands and a choice-based bidding process.

The claimants argued that the scheme failed to recognise composite needs and did not define the criteria for reasonable preference. The central issues were whether the scheme enabled comparative need to be assessed fairly, whether self-assessment and panel practice could cure defects in the published scheme, and whether the statutory requirement to state the allocation procedure and criteria had been met.

1. The claim was allowed. The allocation scheme was unlawful and a declaration was made. The application for mandatory relief was adjourned generally, with liberty to restore after four months. The defendant was ordered to pay the claimants’ post-permission costs, subject to detailed assessment if not agreed. Permission to appeal was refused.
2. Part VI of the Housing Act 1996 requires a scheme to provide a mechanism for assessing comparative need and, so far as possible and subject to reasonable countervailing factors, giving priority to applicants with greater need. The scheme must take account of need under all the statutory heads and must recognise that the categories may be cumulative. The court adopted the reasoning in R v Islington LBC, ex parte Reilly & Mannix and R v Westminster City Council, ex parte Al-Khorsan, as developed in R (A) v Lambeth LBC.
3. The introduction of choice-based letting by the 2002 amendments did not displace the priority given to housing need. Applicants’ ability to assess their own needs and bid for less attractive properties was no substitute for an allocation scheme which itself identified comparative need.
4. The defendant’s narrow additional-preference band left the reasonable-preference band covering a wide range of needs. Because priority within that band depended solely on registration date, the scheme failed to give effect to cumulative needs. Broad discretion exercised by panels, without published criteria, was too vague and unguided to cure the defect and would risk inconsistent or arbitrary results.
5. Section 167(1) required the published scheme to set out the procedure for allocation, including how need would be assessed and the role of decision-makers. Section 167(8) prevented allocations otherwise than in accordance with the scheme. The defendant’s undisclosed panel practice therefore could not lawfully supplement the published scheme.
6. The scheme also failed to state the criteria for reasonable preference. The statutory duty was not particularly demanding, but it required the scheme to explain the criteria applicable to each group and indicate that they would be applied. The criteria could not be inferred simply by eliminating the additional-preference and no-preference categories.

This was a first-instance judicial review in the Administrative Court. The court allowed the application, granted declaratory relief, adjourned mandatory relief generally with liberty to restore after four months, and refused permission to appeal.