Marcio Gomes, R (on the application of) v Royal Borough of Kensington and Chelsea

A local housing authority must comply with its allocation scheme, but a scheme may confer discretion to make exceptional provision. A claimant cannot ordinarily convert that discretion into a duty to provide the accommodation sought. A policy need not cater expressly for every conceivable circumstance if it leaves a genuine discretion to make exceptions.

The duty under section 11(2)(a) of the Children Act 2004 requires arrangements ensuring that functions are discharged having regard to children’s welfare. It does not require particular accommodation, a fresh needs assessment in every case, or reference to every piece of evidence. Housing allocation does not generally engage article 8, and, if it does, the obligation is substantive rather than merely procedural.

The claimant, a former resident of Grenfell Tower, challenged the defendant local housing authority’s refusal to offer him a three-bedroom property after his separation from his wife. He argued that the Grenfell Rehousing Policy should be reopened so that its split-household provision applied retrospectively, and that a two-bedroom offer was unlawful.

He also challenged the defendant’s consideration of his children’s welfare under section 11 of the Children Act 2004, relied on article 8 of the Convention, alleged failure to consider material matters, and challenged the legality and operation of the later Grenfell Settled Home Policy. The central issues were whether the policies permitted or required a larger allocation and whether the defendant had acted unlawfully in exercising its discretion.

1. The claim was dismissed. The defendant was obliged to comply with the general 2017 allocation scheme, but that scheme and the Grenfell Rehousing Policy contained limited flexibility and discretionary powers for exceptional cases.
2. The claimant’s acceptance of a four-bedroom property in 2018 terminated the household’s rights under paragraph 7.3 of the Grenfell Rehousing Policy. Accordingly, paragraph 5.3, concerning split households, did not automatically apply when the claimant later separated from his wife. The defendant nevertheless had power in principle to disapply paragraph 7.3 and extend that provision in an exceptional case.
3. The defendant was not legally bound to exercise that discretion in the claimant’s favour. Its decision to award the highest priority under the general scheme and offer a two-bedroom property, while refusing a three-bedroom property because of the scarcity of such properties and the total accommodation available to the family, was lawful and rational. The court would not rewrite the allocation policy or substitute its assessment for the authority’s balancing of competing housing needs.
4. The section 11(2)(a) duty under the Children Act 2004 applied to the individual decisions as well as policy formulation. It required the authority to have arrangements in place to consider children’s welfare, but did not require particular accommodation, a fresh assessment in every case, or express reference to every item of evidence. The arrangements had been applied to the claimant’s case.
5. The article 8 ground failed. For present purposes, the court proceeded on the basis that housing allocation did not generally engage article 8. If it were engaged, the obligation would be substantive: the issue would be whether the rights were violated, not merely whether the authority had considered engagement.
6. The challenge to the Grenfell Settled Home Policy was in substance a challenge to its operation in the claimant’s case. The policy’s at-large discretion was lawful; it was not inflexible merely because the claimant did not receive the accommodation sought.