Kabashi v London Borough of Redbridge

A local housing authority has broad discretion to devise the details of a lawful allocation scheme, subject to the statutory requirement to secure reasonable preference and the ordinary public law requirement of rationality. Once those requirements are met, the court should be very slow to interfere with the authority’s choices about priorities within a band, including the use of effective dates when an applicant’s assessed housing need changes. The court should not conduct a detailed evaluation of competing allocation mechanisms or require a residual discretion to relieve apparently harsh outcomes. A scheme may therefore lawfully reset an applicant’s effective date when the required property size changes, whether the applicant moves to larger or smaller accommodation.

The claimant was homeless and living in temporary accommodation provided by the defendant under Housing Act 1996, section 193. She was also registered under the defendant’s housing allocation scheme, initially with an effective date of 11 September 2003 and a need for a three-bedroom property.

When her brother left the household, her assessed need changed to two bedrooms. Under the scheme, her effective date was reset to 1 August 2007. She sought judicial review, arguing that the reset was irrational, unlawfully fettered the defendant’s discretion, and should have been avoided through a residual discretion. The central issue was whether the scheme’s treatment of a changed housing need was unlawful.

1. Claim dismissed. The claimant’s application for judicial review was rejected.
2. Part 6 of the Housing Act 1996 requires an allocation scheme to secure reasonable preference for the statutory categories in section 167(2), but does not require priorities within those categories to be assessed by the relative gravity of individual applicants’ needs. Subject to statutory compliance and rationality, the detailed design of the scheme is for the local authority.
3. The reasoning in R (Ahmed) v London Borough of Newham [2009] UKHL 14 established that a court should be very slow to interfere with a compliant allocation scheme on irrationality grounds. It should not become involved in the details of a scheme or second-guess policy choices concerning priority within a band.
4. The effective-date provision was supported by rational considerations, including the avoidance of queue jumping and the need for a transparent and workable system. The court could not properly determine irrationality by analysing uncertain statistics or comparing the claimant’s outcome with alternative schemes.
5. A residual discretion to relax an apparently harsh rule was not required. Following R (Cali and others) v London Borough of Waltham Forest [2007] HLR 1, such a discretion would risk vague, uncertain and non-transparent outcomes. The reasoning in R v London Borough of Lambeth, ex party Yemlahi [2002] EWHC 1187 applied equally where housing need was reduced rather than increased. The claim was dismissed.

First-instance judicial review decision. The judgment records no subsequent appellate decision.