MV, R (on the application of) v London Borough of Lewisham

A local housing authority must determine an allocation application under the current lawful allocation scheme. Applying a superseded scheme is a legal error and may justify quashing the decision, but it does not establish an entitlement to the highest priority or to rehousing.

Where an allocation scheme requires agency referral and entrusts the decision to a housing panel, referral does not oblige the panel to consider or grant emergency priority. A mandatory order is inappropriate unless the evidence shows that no reasonable authority could refuse the relief, and it may also be premature where a fresh application is invited.

Unlawful administrative action alone does not create a damages claim. Compensation requires a distinct cause of action in tort or under the Human Rights Act 1998.

The claimant sought judicial review of decisions by the London Borough of Lewisham concerning his priority under its housing allocation scheme. Permission was limited to the complaint that, following his request of 28 November 2022, the Council failed to place him in Band 1. Permission was refused on a separate complaint concerning alleged failure to control neighbouring tenants.

The Council accepted that its decision of 22 November 2022 had been made under the superseded 2017 policy rather than the 2022 policy and withdrew it. A later decision of 4 December 2023 was also withdrawn. The issues were whether the first decision should be quashed, whether the court should require Band 1 priority and rehousing, and whether the claimant could obtain damages.

1. The claim succeeded to the limited extent that the Council’s decision of 22 November 2022 was quashed. It had been made under the 2017 policy, although that policy had been replaced by the 2022 policy. The later decision had been withdrawn, and the claimant was invited to make a fresh application.

2. The 2022 policy was not shown to be unlawful or unreasonable. Its Band 1 emergency-priority provisions required referral by another agency and satisfaction by the Housing Panel that there was an urgent need for rehousing. Even if the police email amounted to a qualifying referral, the policy did not oblige the Panel to consider the case or award priority. Those matters remained within the Panel’s discretion.

3. A mandatory order requiring Band 1 priority and rehousing was refused. The evidence did not establish that refusal would be so unreasonable that no reasonable authority could take that course. The Council had to consider its statutory duties, limited housing resources, available housing stock and competing applications. The proposed order was also premature because the claimant had not yet made the fresh application contemplated by the Council.

4. No damages were recoverable for the alleged unlawful administrative action alone. A distinct cause of action in tort or under the Human Rights Act 1998 was required. No breach of Articles 8 or 14 was established. Although Article 8 may in some circumstances impose a positive obligation to provide accommodation, the claimant’s existing accommodation and the findings made did not establish such an obligation here.

5. Even if an Article 8 breach had been established, quashing the decision and reconsideration would have provided just satisfaction, so damages would not have been necessary. The only substantive order was quashing the 22 November 2022 decision. The preliminary costs view was payment by the Council up to the end of 2023, with no order as to costs thereafter.