M, R (on the application of) v London Borough of Hackney

A local housing authority may override medical priority under its allocation scheme where the applicant’s behaviour is sufficiently serious to make him unsuitable to be a tenant. The relevant question is whether the authority could reasonably regard the behaviour as conduct which would justify an outright possession order if the applicant were a secure tenant. The authority must apply the statutory and scheme-based eligibility criteria, but its reasons need only be sufficiently clear to the applicant in context. The court must not elide its judicial review function with the authority’s administrative housing function.

The claimant, an elderly and severely disabled secure tenant, sought judicial review of the Council’s refusal to transfer him from first-floor to ground-floor accommodation. His medical priority under the Council’s housing allocation scheme was assessed as critical or category A. The Council refused the transfer after considering his history of sexual offending and conduct involving a 15-year-old boy, in the context of a sexual offences prevention order.

He alleged that the Council had failed to apply the statutory allocation criteria, acted procedurally unfairly, failed to give adequate reasons and reached an irrational conclusion. The central issue was whether the Council lawfully treated his conduct as unacceptable behaviour sufficient to displace his medical priority.

1. The claim was dismissed. The Council was entitled to refuse the transfer and an order for costs was sought, subject to the usual caveat.
2. Part 6 of the Housing Act 1996 governed the transfer application. Although the Council’s correspondence was opaque, read as a whole it showed that the claimant had been removed from the housing system because the Council considered him ineligible under its allocation scheme. The reference to an appeal and the provision of the scheme supported that conclusion.
3. There was no procedural unfairness or legally inadequate explanation. The claimant knew the relevant background and the reasons why the offer had been withdrawn. The statutory requirement to notify an applicant of the grounds for an ineligibility decision was satisfied in context.
4. The Council was entitled to treat the 2004 conduct involving a 15-year-old boy as serious anti-social behaviour, despite the absence of a criminal conviction. The statutory concept of unacceptable behaviour required consideration of whether the conduct would justify an outright possession order if the claimant were a secure tenant. The Council could give very substantial weight to public protection and could override the claimant’s medical priority.
5. The court had to respect the distinction between judicial and administrative functions. It was not for the court to allocate Hackney’s housing or substitute its own assessment. On the evidence, it was impossible to conclude that no reasonable housing authority would have found the claimant unsuitable to be a tenant. The decision was therefore neither unlawful nor irrational.
6. The Council recognised the hardship caused and undertook to continue community-care services meeting the claimant’s needs in his existing accommodation. The judge indicated that he expected the undertaking to be honoured.

First-instance judicial review decision. No appellate history was stated in the judgment.