Jakimaviciute, R (on the Application of) v Hammersmith and Fulham London Borough Council

A local housing authority’s power to determine which classes are qualifying persons for social housing is subject to the statutory duty to secure reasonable preference for the classes specified in Housing Act 1996, section 166A(3). Qualification criteria form part of the allocation scheme and cannot be used to redefine a statutory preference class.

An authority may set priorities within a preference class and take account of differing levels of housing need. It cannot, however, exclude a large proportion of that class altogether for a reason inconsistent with Parliament’s definition of the class. Lesser need may instead be reflected through an appropriate priority or banding structure.

The claimant was owed the main homelessness duty under section 193(2) of the Housing Act 1996 and had been placed in suitable long-term temporary accommodation. Under the respondent Council’s new housing allocation scheme, people in that position did not normally qualify for registration. The claimant was consequently removed from the housing register, although a later threat to her accommodation led to her reinstatement.

Permission to apply for judicial review was refused in the Administrative Court. Sir Stanley Burnton granted permission in the Court of Appeal and directed that the application be retained there for determination.

The central questions were whether the power to determine qualifying classes under section 160ZA(7) was subject to the reasonable-preference duty in section 166A(3), and whether the challenged exclusion breached that duty.

1. The application for judicial review was allowed. Paragraph 2.14(d) of the Council’s allocation scheme was unlawful. Richards LJ would, subject to argument about relief, grant a declaration to that effect. Tomlinson and Bean LJJ agreed.

2. Part 6 of the Housing Act 1996 had to be read as a whole. Although section 160ZA(7) confers a discretionary power to determine qualifying classes and does not expressly make that power subject to section 166A(3), the statutory provisions establish a close relationship between them. An allocation scheme covers the entire allocation process. That process includes deciding whether an applicant is eligible and qualifies for consideration.

3. The information, review, publication and consultation provisions reinforce the conclusion that qualification criteria form part of the allocation scheme. Section 166A(3) applies to the framing of the scheme as a whole. It requires reasonable preference for all members of the specified classes, rather than only those remaining after qualification criteria have excluded other members.

4. The challenged provision was fundamentally inconsistent with section 166A(3)(b). It excluded the great majority of people owed a relevant Part 7 housing duty from any consideration for an allocation merely because they occupied suitable long-term temporary accommodation. That amounted in substance to cutting down a class which Parliament itself had defined. The flexibility permitted in securing reasonable preference did not authorise such an exclusion.

5. Authorities nevertheless retain a wide discretion in determining priorities. They may give some groups within a reasonable-preference class greater priority than others and may take account of differing levels of housing need. Richards LJ observed that the Council could consider reflecting the lesser need of suitably accommodated applicants through an appropriate banding structure instead of excluding them from qualification.

6. The court did not determine the subsidiary argument that the provision lacked sufficient transparency. Richards LJ was not greatly impressed by it, and it had no wider significance once the provision had been held unlawful on the principal grounds.

1. Court of Appeal (Civil Division): The application for judicial review was retained for determination and allowed. Paragraph 2.14(d) of the allocation scheme was held unlawful: [2014] EWCA Civ 1438.

2. Administrative Court: Permission to apply for judicial review was refused.

3. Court of Appeal permission stage: Sir Stanley Burnton granted permission and directed that the application be retained in the Court of Appeal rather than returned to the Administrative Court.