R (on the application of Ahmad) (Respondent) v Mayor and Burgesses of London Borough of Newham (Appellants)

Part VI of the Housing Act 1996 does not confer an individual entitlement to social housing. A lawful allocation scheme must give reasonable preference to the statutory groups as groups, but need not rank every household according to the relative gravity of its needs. Additional preference and internal priorities are discretionary. Subject to the statutory requirements, an authority may use transparent broad bands and waiting time. A reviewing court should intervene only for clear irrationality. Reasonable preference does not mean absolute priority, so a small proportion of properties may be available for non-priority transfers where rational housing-management considerations support the overall balance.

R (on the application of Ahmad) v Mayor and Burgesses of London Borough of Newham concerned the legality of Newham's social-housing allocation scheme. Most choice-based lettings went to applicants within the reasonable-preference groups in section 167(2) of the Housing Act 1996. Except for narrowly defined urgent-need groups, those applicants were ranked by the time spent waiting.

Mr Ahmad sought judicial review. He contended that the scheme failed to assess the relative severity of multiple housing needs and unlawfully permitted up to 5% of choice-based lettings to existing tenants seeking same-sized transfers. The Administrative Court, [2007] EWHC 2332 (Admin), declared the scheme unlawful, and the Court of Appeal, [2008] EWCA Civ 140, upheld that decision.

The central questions were whether section 167 required individual applicants within the reasonable-preference groups to be ranked by relative need, whether waiting time was a rational means of ordering them, and whether the transfer allocation was compatible with reasonable preference.

1. Appeal allowed unanimously. Baroness Hale and Lord Neuberger delivered the principal speeches. Lord Hope, Lord Scott and Lord Walker agreed with both. The claim for judicial review was dismissed in so far as it challenged the legality of the allocation scheme.

2. Per Baroness Hale, Part VI of the Housing Act 1996 gives no applicant a right to be provided with a house. An applicant has, at most, a right to have an application considered properly under a lawful scheme. The legality of an authority-wide policy must be assessed as a policy applying to all applicants, rather than by concentrating on the compelling circumstances of one household.

3. Per Baroness Hale and Lord Neuberger, section 167(2) requires reasonable preference for the specified groups over people outside those groups. It does not require an authority to rank every household within the groups by the relative gravity of its needs. The closing sentence of section 167(2) permits, but does not require, additional preference for descriptions of people with urgent needs. Section 167(2A) likewise permits, but does not require, further priority rules within the reasonable-preference groups.

4. Per Lord Neuberger, section 167(6), read with section 159(7), leaves the principles of a compliant scheme to the authority. The courts should intervene for irrationality only in clear and exceptional circumstances. Newham's use of stringent urgent-need categories followed by waiting time for other priority applicants was rational. Waiting time was objective, transparent and difficult to manipulate, whereas more nuanced assessments would require subjective comparisons and continual review. Lord Scott separately emphasised those advantages and the absence of a satisfactory alternative.

5. Per Baroness Hale, reasonable preference does not mean absolute priority in relation to every property. An authority may consider wider housing-management objectives. Permitting no more than 5% of choice-based lettings to existing tenants seeking same-sized transfers maintained substantial overall preference for the statutory groups. A transfer was also accommodation-neutral because the transferring tenant's former property became available for reallocation.

6. Per Baroness Hale and Lord Neuberger, the pre-amendment approach represented by R (A) v Lambeth London Borough Council, [2002] EWCA Civ 1084, could no longer be relied upon to require identification and priority treatment of the individually greatest needs. The relevant statutory provisions had been materially replaced by the Homelessness Act 2002. Lord Neuberger also held that section 169 required regard to the Secretary of State's guidance, not automatic adherence to it. Newham's scheme was consistent with its general thrust.

7. The declaration made by the Administrative Court was set aside.

1. House of Lords: By [2009] UKHL 14, unanimously allowed Newham's appeal, dismissed the relevant judicial-review challenge and set aside the Administrative Court's declaration.

2. Court of Appeal: By [2008] EWCA Civ 140, upheld the Administrative Court's decision that the allocation scheme was unlawful.

3. Administrative Court: By [2007] EWHC 2332 (Admin), declared Newham's section 167 allocation policy unlawful and required reconsideration in accordance with a lawful multiple-needs policy.