Faarah, R (on the application of) v London Borough of Southwark

Under the Housing Act 1996, a local housing authority has wide discretion to devise an allocation scheme. Once adopted, however, accommodation must be allocated in accordance with that scheme. An unpublished transitional practice cannot impose criteria inconsistent with the published scheme.

Where old and new medical-priority criteria are substantively equivalent, an authority cannot use an unpublished coding practice to deny corresponding priority to an applicant previously assessed under the old criteria. Relief for delay remains discretionary, and an appellate court should not interfere unless the lower court acted outside the proper ambit of its discretion.

This was an appeal by Southwark against the Administrative Court’s decision on a judicial review concerning Ms Faarah’s position on its housing list. Under the former points scheme she had 20 medical points and 25 overcrowding points. When the authority introduced a banding and choice-based lettings scheme, it treated her as qualifying for band 3 only for overcrowding, despite using the earlier medical assessment and despite equivalent medical criteria in the new scheme. A later assessment placed her in band 2 from July 2007.

The Administrative Court quashed the authority’s September 2007 decision and made declarations concerning the unlawful medical-point transition and computation of the priority date. The appeal concerned band 2 eligibility, the priority date, delay, and the form of relief.

Lord Justice Toulson gave the leading judgment. Lord Justice Wall agreed with both judgments, and Lord Justice Sedley agreed with Toulson LJ, adding observations. The court therefore reached a unanimous result.

1. Statutory framework. The Housing Act 1996 gives a local housing authority wide discretion in devising its allocation scheme. That discretion is subject to the statutory requirement that accommodation must be allocated in accordance with the adopted scheme. An unpublished administrative practice which cannot be reconciled with the published scheme breaches that duty.
2. Medical priority. The old scheme’s criterion for 20 medical points was substantively identical to the new scheme’s criterion for band 3 medical priority. Both addressed an illness or disability adversely affected by the applicant’s current home and requiring a move to alleviate or improve the condition. Southwark’s coding system unlawfully treated applicants who satisfied the old criterion as lacking medical priority unless an additional requirement was met.
3. Multiple needs and priority date. Ms Faarah qualified for band 3 on both medical and overcrowding grounds and therefore qualified for band 2 under the multiple-needs provision. The court did not determine whether her band 2 priority date should pre-date the new scheme. That issue had not been fully argued, and the court was concerned with legality rather than choosing the fairest allocation model. Any practice of awarding pre-inception priority dates ought to be published.
4. Relief. Relief for delay is discretionary. Although the court may refuse relief after a full hearing, delay is ordinarily most relevant at the permission stage and refusal becomes less likely once continuing unlawfulness is established. An appellate court should interfere only where the lower court acted outside the proper ambit of its discretion. The quashing order and the general declaration concerning the unlawful transition were justified.
5. The declaration that the allocation scheme itself was unlawful because its published terms did not specify the priority-date practice was inappropriate. A lawful scheme is not rendered unlawful merely because the authority departs from it. Paragraph 2(ii) of the order was set aside; the appeal was otherwise dismissed.

Sedley LJ additionally emphasised that authorities must ensure their schemes comply with statutory obligations and are not undermined by inconsistent administrative practices.

• Court of Appeal (Civil Division): [2008] EWCA Civ 807. Paragraph 2(ii) of the Administrative Court’s order was set aside; the appeal was otherwise dismissed.
• High Court of Justice, Administrative Court: HHJ Mackie QC quashed Southwark’s decision letter dated 27 September 2007 and made declarations concerning the unlawful transitional arrangements and priority-date computation.