AC-2025-LON-000933 - [2025] EWHC 2745 (Admin)

For many years, there have been more people in Lewisham, as in many other London Boroughs, who need or want to move, than there are homes for them to move to. There are not enough rented homes owned by the Council and by its partners to offer housing to all who want it, or even to everyone who needs a home.

As at October 2012, there were over 18,300 households on the housing register, with only around 1600 properties available to be let each year. By the time of the introduction on 31 October 2022 by the Council of a new Housing Allocation Policy, there were over 10,000 households on its housing register and fewer than 1000 properties, on average, available for letting each year. As of May 2025, there were 11,090 households on the housing register. According to the Council, if the current rate of housing supply remains unchanged and no new applicants are added, it would take over 11 years to house everyone currently on the register.

By section 166A of the Housing Act 1996, the Council, in its capacity as a local housing authority, must have a scheme, called an allocation scheme, “… for determining priorities, and as to the procedure to be followed, in allocating housing accommodation…” (section 166A(1)). Section 166A (14) provides: “(14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.” Section 166A (11) further provides: “(11) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.”

Accordingly, the Council operates a Housing Allocations Scheme, which is revised from time to time. It is not necessary to go further back than the scheme introduced on 12 April 2017. As its most basic, anyone aged 16 or over could apply to join the housing list, unless they were ineligible (because of immigration status or unacceptable behaviour) or disqualified (on account of having breached the Council’s “One Offer” or “Three Offers” rules, or having significant financial resources, or having supplied false information, or not having a local connection with Lewisham, or having significant rent arrears).

Applications were assessed and placed into a Priority Band. Applicants in Band 1 were given highest priority. This band included people such as persons awarded an Emergency Priority by a Housing Panel; certain Lewisham employees; persons who has been in temporary accommodation for more than 12 months where the lease was due to come to an end within 6 months; persons whose homes were being demolished; “under occupiers” who were moving out; certain young persons being looked after by the Council; and certain persons connected with the Armed or Reserved Forces.

Applicants in Band 2 were a high priority but still had to wait some time to be rehoused. It is not necessary to set out all the categories of persons in Band 2, other than to note that it included such persons such as those would probably become homeless within 90 days, anyone with a high medical priority as recommended by Medical Advisors, and residents of ‘supported housing’ schemes ready to move into independent accommodation. Importantly, for the purposes of this application, it included the following:

“Households who are seriously overcrowded in settled accommodation. Settled accommodation does not include, for example, temporary accommodation secured under Part 7 of the Housing Act 1996, the Children Act 1989, decant accommodation, a shared house, HMO or hostel. This applies to those who are two bedrooms (or more) short for their needs. When working out how many bedrooms you have, the Council will use the following rules: [emphasis added]

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Any room designed as a bedroom will be counted as a bedroom

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If you have more than one living room, all extra living rooms will be counted as a bedroom

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A bedsit or studio flat will count as one bedroom

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Any room smaller than 50 square foot will not count as a bedroom.”

Band 3 included applicants who, in the opinion of the Council, had one of the following needs: they were homeless within the meaning of Part 7 of the Housing Act 1996; they were owed one of the main housing duties by any local housing authority or were occupying temporary accommodation provided or arranged by a local housing authority; a Council Environmental Health Officer had recommended that they need to move because their current home was unsafe, unsanitary or lacking in basic facilities; they had a need to move because, unless they were rehoused, they or any member of the household would suffer a significant deterioration in their physical or mental illness as a result of their present housing circumstances as determined by the Council’s Medical Advisor; or they had a welfare need to move to a particular locality within the district, in order to give or to receive care or support as determined by the Council’s Medical Advisor.

As for those who were in overcrowded accommodation, Band 3 included:

“Households in settled accommodation who are overcrowded because their present accommodation is one bedroom short of their needs. Please see 2.5.3 for what counts as “settled accommodation”. When working out how many bedrooms you have, the Council will use the following rules: [emphasis added]

◦

Any room designed as a bedroom will be counted as a bedroom

◦

If you have more than one living room, all extra living rooms will be counted as a bedroom

◦

A bedsit or studio flat will count as one bedroom

◦

Any room smaller than 50 square foot will not count as a bedroom.”

It is important to note that the 2017 scheme contained no Band 4, and that the criteria for determining whether a person was overcrowded for the purposes of Band 2 and £ revolved exclusively around the issue of whether, pragmatically, the number of bedrooms was one bedroom short of that person’s needs.

When a property became available, the Council would look at which applicants had expressed an interest or ‘bid’. It then decided which of those applicants the property was most suitable for on the basis of property size. Within the group of applicants for whom the property was suitable on the basis of size, the property would be offered first to the applicant in the highest Priority Band. If there was more than one applicant within the same Priority Band, it would be offered first to the applicant within that band who has been in that band the longest (by reference to their ‘Band date’ or ‘priority list date’).

The 2017 scheme also expressly provided that “If your circumstances change and you are awarded a higher priority, your Band date applies from the date you are given the higher priority, not the original date of your application”.

In 2020 the Council decided to consult on the introduction of a new scheme. In accordance with section 166A (13) of the Housing Act 1996, a public consultation ran from 27 November 2020 to 14 March 2021. A new Housing Allocation Policy was introduced on 6 October 2021. It came into force on 31 October 2022.

The 2022 scheme introduced a banding system under which overcrowding definitions were revised so as to better ensure that those with the most pressing needs were prioritised for accommodation, including those who were the most chronically overcrowded and homeless households.

In the words of Nina Morris, a Housing Register Assessment and Allocations Manager at the Council:

“7.

By 2020 it had become clear to the Council that the previous policy (in place between 2017 and 2022) no longer reflected the scale or nature of housing need in the borough, particularly in relation to overcrowding. The previous banding system did not sufficiently distinguish between levels of overcrowding, meaning that households living in the most severely cramped conditions – such as those lacking three or more bedrooms – were not being prioritised over those with more moderate need. In addition, the policy did not account for statutory overcrowding as defined under the Housing Act 1985, which resulted in a misalignment between legal definitions and operational policy.

8.

The revised Housing Allocation Policy, implemented on 31 October 2022, was therefore a deliberate and necessary reset. Its purpose was to ensure that priority was based on current, evidenced need rather than legacy assessments under a superseded framework. It introduced a clearer banding structure that placed those experiencing the most acute overcrowding – such as statutory cases and those lacking three or more bedrooms – into higher bands, while lowering the banding of applicants with less severe overcrowding.”

Furthermore, provision was expressly made for the first time for those who were “statutorily overcrowded” within the meaning of section 324 of the Housing Act 1985. Section 324 provides: “324. Definition of overcrowding. A dwelling is overcrowded for the purposes of this Part when the number of persons sleeping in the dwelling is such as to contravene – (a) the standard specified in section 324 (the room standard), or (b) the standard specified in section 326 (the space standard)”.

The three existing bands were replaced by four new bands. Under the 2022 scheme, those who were overcrowded by at least three additional bedrooms or who required two additional bedrooms and were statutorily overcrowded were included (amongst other categories of persons) in Band 2 (“High Priority”).

Band 3 (“Medium Priority”) included applicants who needed at least two additional bedrooms or were overcrowded by one additional bedroom and were statutorily overcrowded, and Band 4 (“Low Priority”) included the least severe overcrowding, namely applicants who were “overcrowded by 1 bed and not statutorily overcrowded” or households who were statutorily overcrowded on lack of space but who were not in need of additional bedrooms.

According to Ms Morris, in her first statement of 17 July 2025, all applicants were re-classified:

“9.

To apply these new rules fairly and consistently, it was essential that all existing applicants we reassessed against the new criteria. Automatically retaining previous Band dates under the old system would have undermined the entire purpose of the policy reform, which was to rebalance the register in line with the Council’s current understanding of need.”

In so far as those persons who were overcrowded and who has been in Band 3 under the 2017 scheme were concerned, i.e. those persons in settled accommodation who were overcrowded because their present accommodation was one bedroom short of their needs (but who were not designated as “statutorily overcrowded”), they were automatically re-classified as Band 4 (Ms Morris’ second statement of 19 September 2025):

“13.

Upon the introduction of the Council’s Revised Allocation Policy in 2022, the Claimant was one of circa 4.000 individuals in the Borough who were overcrowded by one bed and who were placed into a newly created Band 4”.

The 2022 scheme retains the core principle of offering a suitable property to those in the highest Priority Band first; para 3.3. Accordingly, the higher the band, the quicker an applicant can expect to be offered a property to move into. If there is more than one applicant within the same Priority Band, it is offered first to the applicant within that band who has been in that band the longest i.e. who has the earliest Band date. Where two bidding applicants are in the same Priority Band and have the same Band date, the length of time on the Housing Register will be determinative.

According to Ms Morris, following implementation of the 2022 scheme, the Council accepted applications from applicants applying to move to a higher band because they thought they might meet one of the newly created eligibility criteria. This was done through the submission of a change of circumstances form. However, in contradistinction to the position under the 2017 scheme, which expressly referred (see paragraph 12 above) to the fact that an upward change in band would lead the Band date being brought forward to the date of the application, the 2022 scheme contained no reference to the ability to apply to join a higher band on the ground of change of circumstances or the fact that, in the event of a successful application, the Band date would be changed to the date on which the application had been made to join the higher band (in reflection, it is presumed, of the fact that the applicant, if successful, would be gaining the advantage of being in a higher band, and thus would be considered before those persons in the band in which they had formerly been). According to Ms Morris, the wording had been “inadvertently omitted” from the 2022 scheme (paragraph 21 of her second statement), but this had not amounted to a “substantive” change; it had been “editorial” only.

The Claimant was nevertheless informed, by letter dated 25 October 2022, that if she had formerly been a Band 3 person, and had been automatically been places in Band 4, she had the right to apply to be placed in Band 3 if she required one additional room and thought that she was statutorily overcrowded. She was not told that, if successful, her Band date would be changed from her existing Band date to the date on which she made such an application (if successful). However, an email from the Council to the volunteer group Housing Action Southwark Lambeth (HASL), who were assisting the Claimant, on 2 December 2022, stated:

“However since the introduction of our new allocation policy Miss Rodriguez may be eligible for the new ‘overcrowded by 1 – statutory overcrowding – Band 3. In order for this to be determined Miss Rodriguez will need to complete a change of circumstances form. This form has been updated to capture all the rooms the family have access to and their sizes.

If awarded the new banding this will be from when the change of circumstances form is received. No application that is awarded statutory overcrowding will be back dated prior 31st October 2022 as before this date the eligibility did not exist.” [emphasis added]

Evidence from the Council suggests that around 151 people were moved into Band 3 from Band 4 on the introduction of the new scheme, either by way of automatic designation or by the Council’s housing IT system, Locata, or following the submission of an individual change of circumstances form.

In August 2025 the Council corrected the omission by revising the 2022 scheme to include the sentence: “If your circumstances change and you are awarded a higher priority Band, your Band date will be updated to the date that new priority was given – not your original application date.”