Edward, R (on the application of) v Royal Borough of Greenwich

The claimant sought renewed permission to apply for judicial review of the defendant's decision of 18 October 2016 to exclude him from its housing register under Part 6 of the Housing Act 1996. The court found that most of the issues had already been considered and finally determined in earlier proceedings and that re-litigation was an abuse of process absent material change; the only new point — that exclusion on grounds of "unacceptable behaviour" was unlawful after repeal by the Localism Act 2011 — was unarguable. The court held that, on the proper reading of the Housing Act 1996 (including section 159(1) and section 160 ZA) and the 2011 amendments, the local authority was entitled to adopt qualification criteria excluding applicants for unacceptable behaviour and rent arrears. The court also refused relief based on delayed disclosure and emphasised that statutory routes exist for Data Protection and Freedom of Information complaints.

This is a renewed application for permission to apply for judicial review of the Royal Borough of Greenwich's decision of 18 October 2016 to exclude the claimant from its housing register. The claimant, represented himself, sought permission to challenge the lawfulness of the exclusion under the council's Allocation Scheme (Part 6 of the Housing Act 1996) and alleged breaches of the Data Protection Act 1996 and the Freedom of Information Act 2000.

Background and procedural posture:

• The claimant has a criminal record including convictions in 2009 and 2014 and a history of imprisonment. He applied to join the council's housing register after release from prison; his earlier registration had been cancelled in 2014 when he failed to renew it.
• The council initially admitted him to the register in September 2016 but then suspended and ultimately excluded him on 18 October 2016 under paragraph 2.3.1 of its Allocation Policy for "unacceptable behaviour" and rent arrears.
• The claimant issued prior judicial review claims (CO/4519/2016 and CO/5374/2016). Permission to challenge the council's decisions was refused by HH Judge Wall QC on 9 November 2016; permission to appeal was refused by Gloster LJ. Permission was also refused earlier on the papers by HH Judge Coe QC. The claimant sought renewal of permission and raised additional grounds including Data Protection and Freedom of Information issues.

Issues framed by the court:

• Whether re-running substantially the same challenges already decided was an abuse of process.
• Whether the council lawfully excluded the claimant from the housing register under its Allocation Scheme, given amendments effected by the Localism Act 2011.
• Whether delay or withholding of documents could sustain a judicial review claim or whether statutory regimes (Data Protection and FOI) were the appropriate avenues.

Decision and reasoning:

• The court found that the majority of the claimant's arguments had been previously considered and decided; there was no material change of circumstances to justify re-litigation. The claimant could raise new matters but his only new legal submission — that the council could no longer exclude applicants for "unacceptable behaviour" because earlier statutory provisions had been repealed — was unarguable. The court analysed Part 6 of the Housing Act 1996, including section 159(1) and section 160 ZA, and concluded that the Localism Act 2011 amendments gave councils freedom to determine qualification criteria and did not prohibit exclusion on grounds of unacceptable behaviour.
• The court further held that the delayed disclosure of the panel report did not affect the lawfulness of the exclusion decision. The claimant was reminded that complaints under the Data Protection Act and Freedom of Information Act should generally be pursued through the specialist statutory routes, with judicial review being a remedy of last resort.
• Permission to apply for judicial review was refused and the application was designated totally without merit.

Permission to apply for judicial review was refused. The court held that most grounds were previously determined and that the claimant's new submission that exclusion on grounds of "unacceptable behaviour" is unlawful post-Localism Act 2011 was unarguable because the Housing Act 1996 (including section 159(1) and section 160 ZA) and the 2011 amendments permit local qualification criteria. Delay in disclosure did not affect the lawfulness of the decision, and statutory remedies exist for Data Protection and FOI complaints. The application was therefore dismissed as totally without merit.

The judgment records earlier related proceedings and refusals of permission: HH Judge Wall QC refused permission to apply for judicial review in CO/4519/2016 and CO/5374/2016 at an oral permission hearing on 9 November 2016; Gloster LJ refused permission to appeal (date not specified in the judgment). HH Judge Coe QC refused permission on the papers on 20 February 2017. The present hearing was a renewal application following those refusals and prior procedural steps (claim numbers and dates set out in the judgment).