Shanice Khayyat & Anor. v Westminster City Council

A local housing authority may exclude individuals who fall within a statutory reasonable-preference category, but only by reference to factors of general application. A policy may not exclude an entire statutory category, or redefine the statutory scheme so that one category receives no reasonable preference. The unlawfulness of such a policy does not depend on the proportion excluded, the authority’s intention, or whether the policy is rational. The relevant question is whether the qualification is consistent with the statutory scheme. A policy limiting registration to persons owed the main housing duty unlawfully excludes homeless persons who are eligible but lack priority need or are intentionally homeless.

The claimants sought judicial review of Westminster City Council’s March 2020 Housing Allocation Scheme. The Scheme limited admission to the housing register principally to homeless persons owed the main housing duty under section 193(2) of the Housing Act 1996. The Council accepted that both claimants were homeless, but initially refused registration because it did not accept that the main housing duty was owed.

The Council later accepted that duty in both cases. The first claimant’s individual claim became academic after she obtained secure accommodation. The second claimant remained in temporary accommodation and maintained that earlier registration would affect her priority. The central issue was whether the Scheme lawfully secured the reasonable preference required by section 166A of the Act.

1. Claims allowed in substance. The Scheme was unlawful because it limited registration to persons owed the main housing duty and failed to secure reasonable preference for all persons within the statutory categories in section 166A(3) of the Housing Act 1996.
2. The reasonable-preference duty applies to the allocation scheme as a whole, including qualification criteria under section 160ZA. A local housing authority may exclude individuals who would otherwise qualify for reasonable preference, but the exclusion must operate by reference to factors of general application. Such factors may apply to individuals in any of the statutory categories, including matters such as rent arrears or local connection.
3. An exclusion based on a factor which is not of general application redefines the statutory scheme. It removes members of one or more statutory categories while leaving others within the scheme. That is unlawful regardless of the size of the excluded class or the authority’s intention. Lawfulness is not determined by whether the policy excludes a sufficiently large proportion of all persons entitled to preference.
4. The references in Jakimaviciute to the exclusion of a large proportion of a class concerned whether the policy had effectively excluded that sub-group. They did not establish a numerical test. Even on the Council’s proposed effects-based approach, the Scheme was unlawful because all homeless persons without priority need were excluded.
5. The court granted declarations that the Scheme was unlawful. The precise form of declarations and any further relief, particularly for the second claimant, was left for agreement or further submissions.