Lin, (R on the application of) v London Borough of Barnet

A housing allocation scheme gives statutory reasonable preference when it provides applicants in the statutory categories with a reasonable head start over applicants outside those categories. Preference concerns comparative priority, not the prospect of receiving housing. A lawful scheme may therefore give some non-statutory applicants more points than some statutory applicants, provided that secondary criteria do not dominate the scheme at the expense of the statutory categories.

An allocation scheme must also state every important aspect of the allocation process. Operational rules determining when a substantial award of points becomes available, and how long it remains available, are central matters which must appear in the published scheme.

The appellant was homeless and owed the full housing duty under section 193(2) of the Housing Act 1996. The Council discharged that duty by placing her and her son in leased temporary accommodation. Under its points-based allocation scheme, she received points for income, residence, waiting time and homelessness, but her bids for permanent accommodation were unsuccessful.

Hughes J held that the scheme was lawful, apart from one matter not challenged in this appeal. The appellant appealed on four grounds. She argued that the scheme gave homeless applicants insufficient preference over other statutory groups and non-preferred applicants. She also challenged its failure to state when an additional 300 lease-end points became available and how long they remained available.

1. The appeal was allowed on the fourth ground and otherwise dismissed. The court unanimously held that the scheme was invalid to the limited extent that it failed to explain the operation of the 300 lease-end points.

2. Section 167(2) of the Housing Act 1996 required reasonable preference, rather than a particular allocation outcome. A person in a statutory category was entitled to a reasonable head start over persons outside the statutory categories. Preference was distinct from the prospect of success, which depended substantially on the shortage of available housing. A scheme could therefore be lawful even though a preferred applicant might never receive Part VI accommodation: paras 25–27.

3. The Council could award different levels of priority to the groups within section 167(2). Section 167(2A) expressly permitted priorities to be determined between those groups. The Council was entitled to regard homeless households already occupying suitable leased accommodation as having a less urgent need than other applicants and to take account of financial and resource considerations: paras 26–30.

4. Section 167(6), read with the statutory guidance, permitted income, residence, waiting time and other non-statutory considerations to influence priority. It was unnecessary for every statutory applicant to have more points than every non-statutory applicant. The scheme had to be assessed as a whole and over time. It would be unlawful if secondary criteria dominated it at the expense of the section 167(2) categories. The Council’s scheme did not have that effect: paras 35–42.

5. Section 167(1) required the scheme to include all important aspects of the allocation process. The dates on which the 300 lease-end points became available and ceased to be available were central to that award, rather than matters of administrative detail. Their omission rendered that part of the scheme invalid: paras 43–49.

1. Court of Appeal (Civil Division): The appeal was allowed on the fourth ground and otherwise dismissed. The allocation scheme was invalid only insofar as it omitted the period during which the 300 lease-end points were available: [2007] EWCA Civ 132.

2. High Court, Administrative Court: Hughes J held that the Council’s allocation scheme was lawful except in one respect which was not the subject of this appeal. No citation for that decision is stated in the judgment.