Montero, R (On the Application Of) v London Borough of Lewisham

A housing allocation scheme may use general qualification criteria which exclude some applicants within a statutory reasonable-preference category. The scheme must nevertheless be considered as a whole and must secure reasonable preference for the statutory categories. A residence or local-connection requirement is not unlawful merely because it affects some applicants with overcrowded housing or another reasonable-preference need. The authority need not assess every application individually, although the criterion must not fundamentally undercut or redefine a statutory category. The court also held that a scheme providing for six months’ disqualification after an unsuccessful application did not remove the continuing five-year residence requirement. The six-month provision prevented a fresh application within that period; it did not make the applicant eligible thereafter.

The claimant sought judicial review of Lewisham’s refusal to admit her to its social-housing register. She lived with her family in overcrowded accommodation but had resided in the borough for less than the five years required by the authority’s allocation scheme. She challenged the residence requirement under section 166 A(3) of the Housing Act 1996 and argued that the scheme’s reference to disqualification for six months meant that she could reapply after that period.

The issues were whether a qualification criterion could exclude some persons within a reasonable-preference category, and whether the six-month provision displaced the substantive five-year residence requirement.

1. Issue 1: reasonable preference. The claim failed. Section 160 ZA(7) permits a local housing authority to decide which classes of persons are qualifying persons, but that power remains subject to the duty in section 166 A(3). The duty does not, however, prohibit every disqualification affecting a person within a reasonable-preference category.
2. The relevant distinction was between an impermissible rule which fundamentally undercuts or redefines a statutory category, as in R(Jakimaviciute) v Hammersmith & Fulham LBC [2014] EWCA Civ 1438, and a rule excluding individual applicants by reference to a generally applicable factor such as rent arrears or local connection. The latter may be lawful if the scheme, viewed overall, gives reasonable preference to the statutory categories.
3. There was no requirement that such criteria be applied only after an individual case-by-case assessment. A residence requirement was a general local-connection criterion of legitimate relevance to housing allocation. The court declined to follow R (HA) v Ealing LBC [2015] EWHC 2375 (Admin) insofar as it held that a residence qualification could never apply to a person within a reasonable-preference category. The claimant’s challenge to the review decision therefore failed.
4. Issue 2: six-month rule. The meaning of an allocation scheme is a question of law, read practically and with appropriate precision. The natural meaning of section 2.2.2 was that five years’ residence was the basic local-connection criterion, subject to specified alternatives. The six-month provision prevented a fresh application within six months of the disqualification decision; it did not cause the five-year criterion to lapse on a later application.
5. The possible interaction with section 160 ZA(11) did not need to be decided. If the six-month restriction were incompatible with that provision, the restriction would have to be disapplied, not the five-year criterion. The claim was dismissed.