LLJ, R (on the application of) v The London Borough of Hackney

A public authority applying a housing-allocation scheme must apply the scheme’s prescribed test and consider all materially relevant evidence. A test requiring a high risk to life or limb is more onerous than a test concerned with an immediate risk to well-being. A decision-maker must address cogent evidence which supports a different outcome and give rational reasons for rejecting it. Withdrawal of a challenged decision does not automatically make judicial review proceedings academic where the underlying dispute remains live and the court’s reasoning is likely to inform reconsideration. Public bodies defending judicial review must continually reassess the merits of their position and comply with duties of candour and cooperation when proposing settlement.

The claimant challenged the defendant local authority’s decision to place her household in Band B rather than Band A of its housing register. The household occupied an overcrowded one-bedroom flat, with damp and mould, and included a child with severe disabilities and developmental difficulties. The claimant argued that the decision failed to apply the Band A test, ignored relevant evidence and was irrational.

After permission had been granted, the Council offered settlement and later withdrew the decision. It accepted that the wrong legal test had been applied and that a surveyor’s report had been misinterpreted. The central issues were whether the court should determine the merits despite withdrawal and whether the original decision was lawful.

1. The claim was determined notwithstanding withdrawal. The withdrawal did not make the claim academic because the dispute about Band A status remained, several challenged issues were likely to recur on reconsideration, and determining the claim would avoid further delay and litigation. The court proceeded on the basis that the Council had power to withdraw and retake the allocation decision under Housing Act 1996, s 166A.
2. The Council’s settlement conduct fell below the required standards. A defendant to judicial review must consider the merits carefully at the pre-action and acknowledgment-of-service stages and must keep its defence under review. Its duties of candour and cooperation apply to settlement. Having decided that its decision faced insurmountable difficulties, the Council should have withdrawn it or stated unequivocally that it would do so, explained why, and avoided defending a decision it no longer considered properly arguable.
3. The Band A test was misapplied. The Allocations Policy required consideration of whether a move was imperative to alleviate an immediate risk to the well-being of the applicant or a household member. That was broader than a high risk to life and limb, and an immediate risk was not necessarily a high risk. Applying the more onerous test was unlawful.
4. The decision-maker failed to take account of highly relevant evidence, including professional letters and the surveyor’s report. The references to having considered all information were inadequate in circumstances where the decision’s document list omitted the material and its findings were inconsistent with it.
5. The remaining reasons were insufficient. The absence of a hospital-discharge case addressed only one example of emergency rehousing. Other stated reasons merely asserted the conclusion. Treating damp and mould as repair matters was also legally erroneous or involved failure to consider a material report showing that overcrowding, rather than disrepair, caused them.
6. The conclusion was irrational. The Council could reject the claimant’s evidence, but it had to recognise and address cogent evidence of immediate risks to the family’s well-being by competing evidence or reasoned analysis. The dated Medical Assessment did not address the central issues and could not rationally justify preferring it without cogent reasons.
7. A declaration was granted that the appeal decision was unlawful. No quashing order was necessary because the decision had been withdrawn, and no mandatory order requiring Band A status was appropriate.