R (Montero) v Lewisham LBC

This is a judicial review of the defendant local authority's housing allocation scheme under Part VI of the Housing Act 1996, in particular the interaction between the section 166 A(3) reasonable preference duty and qualification criteria permitted by section 160 ZA (the 'past residence rule'). The claimant, an overcrowded Lewisham household, had her applications refused because the scheme requires five years' residence to establish a local connection and states that applications from those without local connection are "disqualified for a period of 6 months".

The court held that a qualification criterion may lawfully disqualify some persons who fall within a statutory reasonable preference category provided that, viewed as a whole, the scheme gives reasonable preference to the statutory categories. The court rejected the claimant's argument that any qualification criterion under section 160 ZA which operated to exclude members of a reasonable preference category is unlawful per se.

The court also held that the scheme's statement that an application will be "disqualified for a period of 6 months" must be read sensibly: the six month rule bars reapplication for six months but does not remove the substantive five year residence requirement. The defendant's decision to refuse the claimant's applications was therefore lawful and the claim was dismissed.

Background and parties. The claimant (Ms Montero) applied for social housing from Lewisham on grounds of overcrowding. Lewisham’s allocation scheme, adopted 10 April 2017, requires a five year local residence to establish a local connection. The scheme also provides that applicants without local connection will have their application disqualified for six months. The claimant’s July 2019 application was refused on residence grounds and she sought review and judicial review. Permission to apply for judicial review was granted and the matter was heard on 27 April 2021.

Nature of the claim and relief sought. The claimant sought judicial review of (i) the lawfulness of the scheme insofar as a qualification criterion pursuant to section 160 ZA disqualified a subgroup of persons who fall within the section 166 A(3) reasonable preference categories, and (ii) the defendant’s decisions refusing to admit the claimant to the register, including the correct interpretation of the provision that an application will be "disqualified for a period of 6 months".

Issues framed by the court. The court identified two principal issues: (1) whether a local authority may lawfully apply a qualification/disqualification rule (the past residence rule) that excludes some persons who fall within a statutory reasonable preference category; and (2) whether the scheme’s six month disqualification wording means only a six month bar to reapplication or whether it effectively operated so as to continue to disqualify until the five year residence criterion was met.

Legal framework and authorities considered. The court reviewed Part VI of the Housing Act 1996 (notably sections 159, 160 ZA and 166 A(3)), statutory guidance (Allocation guidance 2012 and follow-up guidance), and authorities including R v Wolverhampton MBC ex parte Watters, Lin v Barnet, R (Ahmad) v Newham, R (Jakimaviciute) v Hammersmith & Fulham, R (HA) v Ealing and others. The court noted the persistent shortage of social housing and the Secretary of State’s guidance encouraging local connection criteria.

Court’s reasoning and conclusions. The court concluded that the statute permits qualification criteria of general application (such as local connection or rent arrears) to be adopted under section 160 ZA, subject to the overall obligation under section 166 A(3) to frame a scheme that gives reasonable preference to the statutory groups. The judge distinguished the invalid exclusion struck down in Jakimaviciute (which excised a very large sub-group of a reasonable preference class) from a residence criterion of the kind adopted by Lewisham and, insofar as R (HA) v Ealing was understood to hold that residency criteria may never disqualify anyone within a reasonable preference category, considered that conclusion to be incorrect. On the six month wording the court held it barred reapplication for six months but did not render the five year residence test redundant; the five year residence (or alternative local connection tests) remained the substantive qualification test. The claim was dismissed.

Procedural notes. Permission to proceed on the first issue was given on the papers; permission to amend and to add the second issue was granted; the claim was issued on 29 September 2020; permission to apply for judicial review was granted 29 October 2020; amendment allowed 24 December 2020; hearing took place 27 April 2021; judgment 21 May 2021.

The claim is dismissed. The court held that a local authority may adopt qualification/disqualification criteria under section 160 ZA which, as a rule of general application, can exclude some persons who fall within a statutory reasonable preference category so long as the allocation scheme as a whole gives reasonable preference to those statutory categories. The court further held that the scheme’s provision that an application is "disqualified for a period of 6 months" operates as a temporary bar to reapplication for six months but does not negate the substantive five year residence requirement for establishing local connection. On these bases the defendant’s refusal decisions were lawful.

This is a first instance Judicial Review in the Administrative Court. Procedural history as stated in the judgment: claim issued 29 September 2020; permission to apply for judicial review granted 29 October 2020; permission to amend to add the second issue granted 24 December 2020; hearing on 27 April 2021; approved judgment handed down 21 May 2021.