EM, R (on the application of) v The London Borough of Havering

A housing allocation scheme must be interpreted practically and with common sense, allowing sensible flexibility where its wording permits it. A residence exception cannot be restricted to applicants already living in the relevant borough unless the scheme says so expressly or the restriction follows necessarily from its structure. A residual priority band may accommodate applicants who qualify under an exception but do not fall within a more specific listed category. Accordingly, exceptions for under-occupation, medical or welfare need, and homelessness were not confined to applicants resident in the borough.

The claimant, a social housing tenant living in Islington, sought judicial review of Havering Council’s refusal to place her on its housing register because she had not lived in Havering continuously for six years. She relied on exceptions in the Housing Allocation Scheme 2021 for under-occupation, reasonable preference on medical or welfare grounds, and homelessness. The Council argued that those exceptions applied only to applicants resident in Havering and that the priority bands were exhaustive.

The claimant also advanced alternative discrimination grounds under Equality Act 2010 section 19 and article 14 of the ECHR read with article 8. Those grounds were not determined because the claim succeeded on the interpretation of the Scheme.

1. Claim succeeded. The Council’s decision of 24 August 2023 was wrong in law. The court made a declaration that, on the information before it, the claimant came within the relevant exceptions to the six-year residence requirement.
2. A housing allocation scheme is interpreted by the court. The appropriate approach is practical, common sense and sufficiently flexible to address individual cases, rather than legalistic. The court applied the approach summarised in R (Flores) v Southwark LBC [2020] EWCA Civ 1697; [2021] HLR 16.
3. The wording of exception 2.3(ii)(b), concerning people under-occupying their current social housing tenancy, contained no requirement that the tenancy or applicant be in Havering. Imposing such a limitation would require words to be read into the Scheme. The express reference to a Havering tenant in Priority Band 2b reinforced that conclusion.
4. The Council’s submission that every exception had to correspond to an exhaustive priority-band category was rejected. Exceptions (e), (g), (h), (i) and (j) did not correspond to specific categories. Priority Band 3 was therefore properly read as a residual category for people with an identified housing need who did not qualify for community-contribution priority.
5. The same reasoning applied to the exceptions for people needing to move on medical or welfare grounds and people homeless within Part 7 of the Housing Act 1996. The evidence established both forms of need, and neither exception was expressly confined to persons living in Havering.
6. The alternative discrimination grounds were left undetermined. The declaration was agreed by the parties and approved by the court.