Patricia Helen Roman Montaño, R (on the application of) v The London Borough of Lambeth

The claimant sought judicial review of the defendant council's failure to decide a request, made on 15 March 2023, to backdate the qualifying/registration date of her housing register account to September 2017. The central legal question was whether the Lambeth Housing Allocation Scheme 2013 contains a discretion to backdate an applicant's registration/qualifying date. The court held that the Scheme does contain such a discretion, construing provisions that permit the council to award additional priority and to exercise discretion in relation to joint tenancies and priority bands as enabling backdating of a registration date. The judge relied on the Scheme text, the council's internal Guidelines for exercising discretion and contemporaneous examples of the council having backdated registration dates. The claimant succeeded on the ground that the council had failed to consider exercising its discretion; the court declared that the council has the power to backdate and ordered it to consider the claimant's request within 28 days. The court also criticised the respondent's limited compliance with its duty of candour, although it concluded there was sufficient material to determine the claim.

Background and parties

The claimant applied to Lambeth's housing register in 2017 using an account recorded in her then partner's name. Following homelessness in October 2022, Lambeth accepted the main housing duty and opened a new account for the claimant in February 2023 with a registration date of 8 February 2023. The claimant's solicitors repeatedly requested that Lambeth exercise any available discretion to backdate the registration/qualifying date to September 2017; those requests were not substantively answered before proceedings were issued. The claimant sought declaratory relief and other relief by way of judicial review.

Nature of the claim and relief sought

• The claimant sought a declaration that the council has a discretion to backdate registration/qualifying dates under its Housing Allocation Scheme 2013 and that the council acted unlawfully in failing to consider exercising that discretion in her case.

Issues framed

• Whether the Scheme contains an express or residual discretion to backdate a registration/qualifying date.
• Whether the council had a duty to consider and decide the claimant's request to exercise any such discretion.
• Whether the council complied with its duty of candour in judicial review proceedings.

Evidence and reasoning

The court interpreted the Scheme purposively and practically, citing the passages that permit the council to award additional priority to homeless persons and to exercise discretion in banding and joint-tenancy scenarios, together with the Scheme's operation of priority between applicants by registration date. The judge held that a lawful way to give additional priority is to backdate the registration date, and that the Scheme's language that submitting a new application 'may' result in loss of priority implies an available discretion as to whether priority is lost. The interpretation was supported by contemporaneous internal Guidelines and by a set of witness examples demonstrating that the council had in fact backdated registration dates in multiple cases. The court rejected the defendant's assertion that any discretion is limited to correcting prior unlawful conduct and found that, at minimum, the council was obliged to consider the claimant's requests. The court also found shortcomings in the council's duty of candour because it had earlier asserted there was no discretion while later producing evidence of discretionary decision-making, but the court considered there was sufficient material to decide the issue without further disclosure.

Result

The claim succeeded. The court declared that the council has a discretion to backdate an applicant's registration date under the Scheme and that the council acted unlawfully by failing to consider exercising that discretion in response to the claimant's request, and ordered the council to consider the claimant's request within 28 days.

This is a first-instance judgment. The claim is allowed. The court held that the London Borough of Lambeth's Housing Allocation Scheme 2013 does contain a discretion to backdate an applicant's registration date and that the council acted unlawfully by failing to consider exercising that discretion in response to the claimant's request. The conclusion rested on textual interpretation of the Scheme (notably provisions permitting additional priority and discretion in banding and joint-tenancy situations), corroborating internal Guidelines on exercising discretion, and contemporaneous evidence that the council had previously backdated registration dates in other cases. The court ordered the council to consider the claimant's request within 28 days and criticised the council's shortcomings in complying with the duty of candour, though it determined the claim on the evidence before it.