Ahmad, R (on the application of) v London Borough of Newham

Under the Housing Act 1996, the reasonable-preference categories are capable of operating cumulatively. An allocation scheme must rationally reflect relative need and identify applicants with the greatest need, giving them priority subject to reasonable countervailing factors. A single reasonable-preference band ranked only by waiting time may be insufficient. Applicants outside the statutory categories cannot compete on equal terms with those entitled to preference. The statutory choice policy does not displace the cumulative-need requirement and does not require choice for applicants receiving direct offers. An allocation scheme need not specify every medical or welfare factor in advance, provided individual decisions explain the factors applied. The appeal was dismissed.

The claimant and his family occupied a two-bedroom wheelchair-accessible property. The household was overcrowded and included children with significant medical needs. Newham’s allocation scheme used choice-based lettings for most properties, with priority within the relevant group determined mainly by waiting time, and direct offers for limited categories including emergency and multiple needs.

The Administrative Court held that the scheme failed adequately to account for cumulative household need, but rejected challenges concerning the reconciliation of choice and need and the sufficiency of the criteria. Newham appealed. The claimant supported the decision and maintained his additional grounds. The central issues were whether the scheme rationally reflected cumulative need, whether its treatment of choice was lawful, and whether its criteria were sufficiently specified.

1. Disposition. Richards LJ, with whom May LJ and Sir Anthony Clarke MR agreed, dismissed the appeal and upheld the Administrative Court’s conclusion that Newham’s allocation scheme was unlawful.
2. Cumulative need. The categories in section 167(2) of the Housing Act 1996 are capable of operating cumulatively. An allocation scheme must therefore contain a rational mechanism for identifying applicants with the greatest housing need and giving them priority, subject to reasonable countervailing factors. This principle formed a consistent line of authority through R v Islington London Borough Council, ex parte Reilly and Mannix (1998) 31 HLR 651, R v Westminster City Council, ex parte Al-Khorsan (1999) 33 HLR 77, R (A) v Lambeth London Borough Council; R (Lindsay) v Lambeth London Borough Council [2002] EWCA Civ 1084 and R (Cali, Abdi and Hassan) v Waltham Forest London Borough Council [2006] EWHC 302. Section 167(2A) permits additional factors to be considered, but does not authorise an authority to disregard relative need. The statutory guidance confirmed that cumulative need had to be addressed.
3. Application to Newham. The choice-based lettings element placed all reasonable-preference applicants in one group, with priority determined by registration time rather than relative need. The restrictive direct-offer categories did not cure that defect because they addressed only the most urgent cases and only some forms of multiple need. The scheme therefore lacked a sufficient mechanism for reflecting composite need. It also unlawfully allowed applicants outside section 167(2) to compete on equal terms with those entitled to reasonable preference. A 5 per cent cap on transfer allocations did not provide the necessary head start and did not cure the defect identified in Lambeth.
4. Choice and need. The statutory requirement to state a policy on choice did not require choice to be offered to applicants who received direct offers. Nor was it irrational, in itself, to offer choice to applicants in lesser need while allocating accommodation directly to applicants in greater need. That conclusion did not save the other defects in the scheme.
5. Sufficiency of criteria. Section 167(1) did not require every medical or welfare factor to be exhaustively stated in the scheme. It was sufficient for relevant factors to be addressed in individual assessments and for the resulting decisions to explain why priority was or was not awarded. The use of pre-2002 statutory wording was unfortunate but not materially erroneous.

• Court of Appeal (Civil Division) — [2008] EWCA Civ 140: dismissed Newham’s appeal and upheld the finding that the allocation scheme was unlawful for failing adequately to reflect cumulative need.
• Administrative Court — The deputy High Court judge held the scheme unlawful on the cumulative-need ground, but rejected the challenges based on choice and need and on the sufficiency of the criteria.