Hillsden, R (on the application of) v Epping Forest District Council

A housing allocation scheme made under Part 6 of the Housing Act 1996 need not reserve a residual discretion to admit applicants who fail its qualifying criteria. The statutory power to define qualifying persons is subject to the express limits in the Act, but is not supplemented by a general public-law duty to create exceptional-case admissions.

The British Oxygen principle applies where a public authority exercises a statutory discretion and unlawfully fetters it by an inflexible policy. It does not apply where the statutory scheme imposes no relevant discretion. Authorities must have regard to ministerial guidance, but need not comply with it as though it were legislation. The application was dismissed.

The claimant sought judicial review of Epping Forest District Council’s refusal to retain her on its housing register under a revised housing allocation scheme. The scheme required existing applicants to satisfy a continuous-residency criterion. It also gave the Director of Housing delegated authority to decide exceptional cases outside the accommodation-allocation provisions of the scheme.

The claimant argued that this provision allowed exceptional admission to the register. Alternatively, she argued that the scheme unlawfully fettered statutory powers, lacked a residual discretion required by public law, and departed unlawfully from ministerial guidance issued under section 169 of the Housing Act 1996. The central issues were the proper construction of the scheme and whether the legislation required an exceptional-case discretion.

1. Application dismissed. Paragraph 7.2 of the scheme concerned exceptional housing-allocation decisions for persons who had already satisfied the qualifying criteria. It did not authorise admission to the housing register despite failure to satisfy the residency criteria. The scheme was to be construed objectively, as a whole, with appropriate latitude for its practical audience and within its statutory context. The hard-edged wording of paragraphs 14.1 to 14.3 disclosed no admission discretion.
2. Part 6 of the Housing Act 1996 gave local housing authorities substantial freedom to frame allocation schemes, subject to the statutory requirements and regulations. Nothing in sections 159, 160ZA or 166A expressly or impliedly required a scheme to include a residual power to admit persons who did not qualify. Such a power might be included, but no statutory duty to include it existed.
3. The British Oxygen principle was confined to the exercise of a statutory discretion. It prevents an authority from treating an inflexible policy as conclusive where Parliament has conferred a discretion. It was not engaged because the alleged omission concerned the absence of a discretion which the statute did not require the Council to create.
4. The decision in R (Ahmad) v Newham LBC confirmed the availability of irrationality and ultra vires challenges, while recognising the considerable latitude available to housing authorities and the permissibility of hard-edged rules. R (Conway) v Charnwood BC arose under a materially different statutory context and did not govern the present scheme.
5. The Council’s duty under section 169(1) was to have regard to ministerial guidance, not to comply with it. The claimant had not shown that the guidance was ignored. Paragraph 3.25 encouraged exceptional-case provisions but did not impose such a requirement. All grounds therefore failed. No question of discretionary relief arose.

The judgment records that permission to apply for judicial review was granted following an oral renewal hearing. The High Court (Administrative Court) dismissed the substantive application. Permission to appeal was subsequently refused.