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

Judicial review is a remedy of last resort. A claimant may not re-litigate legal or factual issues already decided in earlier proceedings unless there has been a material change of circumstances. A local housing authority may adopt qualification criteria under Part 6 of the Housing Act 1996 excluding applicants whose unacceptable behaviour makes them unsuitable tenants, including applicants who might otherwise receive reasonable preference because of medical or welfare needs. Delay in disclosing documents does not render an earlier decision unlawful where the documents add nothing to the reasons or decision-making process. Where a statutory disclosure regime provides an adequate alternative remedy, it should ordinarily be exhausted before judicial review is sought.

The claimant renewed an application for permission to challenge the defendant local authority’s decision of 18 October 2016 excluding him from its housing register. The exclusion relied on his criminal convictions, rent arrears and the authority’s allocation scheme. Earlier claims concerning the same housing decisions had been refused permission by HH Judge Wall QC, and permission to appeal had been refused by the Court of Appeal. The claimant discontinued several grounds but maintained that the allocation scheme was unlawful and that the defendant had breached data-protection and freedom-of-information obligations. The central issues were whether the renewed claim improperly re-litigated matters already decided, whether the allocation scheme could lawfully exclude applicants for unacceptable behaviour, and whether disclosure complaints could support judicial review.

1. Permission refused. The claim was designated totally without merit. There was no order for costs.
2. The claimant was not entitled to re-run legal or factual submissions determined in the earlier judicial review proceedings. The authorities on abuse of process, including R (Opoku) v Principal of Southwark College & Others [2003] 1 WLR 234, Bragg v Oceanus Mutual [1982] 2 Lloyds Rep. 132, Bradford & Bingley BS v Seddon [1999] 1 WLR 1482 and Johnson v Gore-Wood & Co. [2002] 2 AC 1, permitted the court to reject re-litigation in these circumstances. No material change of circumstances had been shown. genuinely new submissions could, however, be considered.
3. The new challenge to the allocation scheme was unarguable. The repeal of the former statutory provisions concerning unacceptable behaviour by sections 146 and 147 of the Localism Act 2011 did not prevent a local housing authority from setting its own qualification criteria. Sections 159 and 160 ZA of the Housing Act 1996 permitted the defendant to exclude persons whose unacceptable behaviour was serious enough to make them unsuitable tenants, and persons with rent arrears.
4. Medical or welfare needs, and possible entitlement to reasonable preference, did not prevent exclusion from the housing register under lawful qualification criteria. The ministerial guidance expressly contemplated disqualification of individuals who otherwise satisfied the reasonable-preference requirement, including for anti-social behaviour.
5. The delayed disclosure of the Case Review Panel report could not establish unlawfulness. The report was brief and added nothing to the decision letter or the reasons for exclusion. Any remaining freedom-of-information complaint had to be pursued under the statutory regime, including the Information Commissioner and First-tier Tribunal appeal mechanisms, before judicial review.

• High Court (Administrative Court): permission had been refused on the papers by HH Judge Coe QC on 20 February 2017. The renewed application was refused by Lang J on 17 May 2017.
• Court of Appeal: Gloster LJ refused permission to appeal from HH Judge Wall QC’s refusal of permission in the earlier related claim, treating the proposed appeal as totally without merit.