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

A housing allocation scheme must be interpreted practically and sensibly, having regard to its overall structure and the flexibility required for individual cases. A discretion to award additional priority may permit a local authority to backdate an applicant’s registration date where that is the mechanism by which priority is conferred. An authority must consider an express request to exercise that discretion. A public authority participating in judicial review must provide full and accurate explanations of material facts and documents; bare assertions do not discharge that duty.

The claimant sought judicial review of Lambeth’s failure to decide her request to backdate the qualifying or registration date of her housing-register account. Her former partner had held the earlier account, and a new account was created in her name after the relationship ended and the claimant was accepted as owed the main housing duty.

The claimant argued that the Housing Allocation Scheme 2013 contained a discretion to backdate registration, and that Lambeth acted unlawfully by failing to consider her request. She advanced alternative arguments concerning equality, discrimination, irrationality and fettering of discretion. The court determined the primary issue and did not decide the alternatives.

1. Interpretation of the Scheme. The meaning of a housing allocation scheme is for the court. It should be read in a practical, common-sense way rather than legalistically, with sensible flexibility for individual cases: R (Flores) v Southwark LBC [2020] EWCA Civ 1697, adopting guidance from R (Ariemuguvbe) v Islington LBC [2009] EWCA Civ 1308.
2. Existence of a discretion. Although the Scheme contains no express reference to backdating the registration date, its provision that the Council may award additional priority to homeless persons must be read with the choice-based lettings system, under which priority within a band depends partly on registration date. Backdating can therefore be a mechanism for awarding additional priority. The joint-tenancy provisions also state that closing and reopening an application “may” result in loss of registration-date priority, confirming that loss is discretionary rather than automatic.
3. The separate power to place an applicant in a higher or lower band or level does not itself assist, because “band” and “level” are defined categories. It does not, however, undermine the construction of the additional-priority provision.
4. The evidence of Lambeth’s previous decisions to backdate accounts, together with its discretionary guidance, was consistent with that interpretation. The court rejected Lambeth’s contention that backdating was available only to remedy previous unlawfulness or unfairness. In any event, on that narrower approach the claimant’s case was arguably one which Lambeth should at least have considered.
5. Lambeth acted unlawfully by failing to consider the claimant’s express request. The court therefore did not need to decide whether a general residual discretion was implied, as discussed in Holley v Hillingdon LBC [2016] EWCA Civ 1052.
6. Duty of candour. Lambeth’s categorical assertion that there was no discretion, its failure to address evidence of prior backdating, and its late disclosure of the discretionary guidance fell short of the duty of candour and co-operation in judicial review. The court nevertheless considered that the claim could fairly be determined on the available evidence.
7. The court declared that Lambeth had a discretion to backdate an applicant’s registration date and had acted unlawfully by failing to consider the claimant’s request. Lambeth was ordered to consider the request within 28 days. The alternative grounds were not determined.