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

A local housing authority must allocate accommodation in accordance with its published allocation scheme. Where a new banding scheme substantially reproduces an earlier medical-priority criterion, the authority cannot use unpublished transitional coding to deprive an applicant of priority accrued under the earlier scheme. The relevant priority date must reflect the date on which the applicant first satisfied the equivalent criterion. Authorities retain substantial discretion to design choice-based allocation schemes. Such schemes are not unlawful merely because individual applicants face an element of chance or occasional anomalies, provided the scheme rationally identifies and gives priority to those in greatest housing need and is supported by legitimate administrative objectives.

The claimant, a Southwark tenant living in overcrowded accommodation with medical difficulties, challenged the priority date and operation of the defendant’s housing allocation scheme. Southwark had replaced a points-based scheme with a four-band choice-based lettings scheme. The claimant had received 20 medical points under the old scheme from 1 July 2003, but was later given a Band 2 priority date in 2007 following a further medical assessment.

She argued that the published scheme was not being operated as published and that permitting only one bid in each weekly bidding cycle allocated scarce accommodation randomly and arbitrarily. The issues were whether her priority date was lawful and whether the bidding arrangements were irrational.

1. Priority date. Under Part 6 of the Housing Act 1996, a local housing authority must maintain and publish an allocation scheme and must allocate accommodation in accordance with it. The scheme must provide a rational means of identifying applicants in greatest housing need and giving them priority.
2. The old scheme’s criterion for 20 medical points was materially equivalent to the new scheme’s Band 3 medical-priority criterion. Southwark’s unpublished A, B and N transitional coding treated the claimant as failing to satisfy the equivalent criterion, although no fresh medical assessment had been carried out and the wording was virtually identical. That process was inconsistent with the published scheme and breached section 167(8). The claimant’s Band 3, and consequent Band 2, priority date should therefore run from 1 July 2003.
3. Southwark was entitled to replace its points system with a banding and choice-based lettings scheme. Transitional arrangements inevitably involved some rough justice, and the court would not prescribe the precise adjustments the authority should make. But the authority’s discretion remained subject to rationality, fairness and compliance with the published scheme.
4. The restriction to one live bid in each weekly cycle was not unlawful. It pursued legitimate administrative objectives, including reducing empty properties and maximising use of scarce social housing. Choice-based allocation necessarily involved some chance and could produce individual anomalies. Those consequences did not make the scheme arbitrary where its overall operation remained consistent with the statutory objective of prioritising housing need.
5. The claim therefore succeeded only as to the priority date. The decision to give an August 2007 rather than a July 2003 priority date was unlawful. The challenge to the bidding arrangements otherwise failed. The question of relief was left for further submissions.

First-instance judicial review. Permission was granted by Wilkie J on 14 January 2008. The Administrative Court held that the priority-date decision was unlawful but rejected the challenge to the choice-based bidding scheme.