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

It is important to recall, first, that this is a judicial review challenge, and not an appeal against the merits of either the 2022 scheme or the decisions made under it. Second, the Claimant does not seek to suggest that the Council was not entitled to introduce the 2022 scheme in the form that it did, in so far as it provided for new Bands with new criteria or for a system by which one-bedroom overcrowded applicants who could demonstrate that they were statutorily overcrowded could be moved up to Band 3. She nevertheless challenges the associated automatic re-designation.

It is, of course, a matter for the local authority to determine how its housing allocation policy should be formulated. A wide discretion is given to local housing authorities. Section 159(7) of the Housing Act 1996 provides: “Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate”.

In R(Flores) v London Borough of Southwark [2020] EWCA Civ 1697 the Court of Appeal stated (at paragraph 11 per Males LJ): “Subject to some very general requirements, which include that the scheme shall be framed so as to secure that “reasonable preference” is given to certain categories of people, one of which is those “occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions”, local authorities have a wide discretion as to the principles on which their scheme should be framed and the way in which housing accommodation should be allocated (see sections 159(7) and 166A(5) and (11) ). Statutory guidance issued in 2012 explained that this flexibility is intended to enable local authorities "to tailor their allocation priorities to meet local needs and local circumstances””.

In planning its affairs and setting its budgets, an authority has to balance all the demands placed upon it by Parliament and match these with the sources of income available to it: R (Imam) v London Borough of Croydon [2023] UKSC at [61].

The width of this discretion was recognised in R (Ahmad) v Newham London Borough Council [2009] UKHL 14, in which Lord Neuberger emphasised at [46] and [55] that housing allocation policy is a difficult exercise which requires not only social and political sensitivity and judgment, but also local expertise and knowledge, and that the courts should be slow to interfere on the ground of irrationality with a scheme which complies with the statutory requirements.

Of course, as further noted by Lord Neuberger, there will be cases where the court has a duty to interfere, for instance if a policy does not comply with statutory requirements, or if it is plainly irrational. However, there is no right to a house or, by extension, to a particular Priority Band. At most, as Baroness Hale made clear in R (Ahmad) v Newham London Borough Council (supra) at paragraph 12, there is a right to have the application for a house properly considered in accordance with a lawful allocation policy.

Adopting the approach identified in R (Ariemuguvbe) v Islington Borough Council [2009] EWCA Civ 1308 by Sullivan LJ, I must read the 2022 scheme in “a practical, common sense, and not in a legalistic way”.

Mr Ahluwalia argues that the Council failed to apply its own policy in so far as the housing allocation scheme, properly construed, required that the Claimant be given a Band date of 10 May 2021. However, there was nothing on the face of the 2022 scheme that required or permitted the Claimant to be allowed to retain her old Band date on being elevated to Band 3. Mr Ahluwalia argues therefore that such a requirement or power is to be implied into the 2022 scheme by virtue of the fact that the 2022 scheme was, in effect, a continuation of the 2017 scheme, in so far as Band 3 applicants were concerned, so that they should be permitted to retain the Band date that they had initially been assigned.

This submission cannot be accepted. The 2022 scheme was not a continuation of the old, in so far as those who were overcrowded by one bedroom were concerned. Unless they were able to show that they were also statutorily overcrowded (a categorisation that had not been contained within the 2017 scheme), they were automatically placed in a new Band 4. They were also required to submit a change of circumstances form demonstrating that they were also statutorily overcrowded if they wished to be moved up to Band 3. These were real and substantive changes, as testified to by the evidence of Ms Morris concerning the policy reasons driving the need for change, and the fact of a substantive consultation process. There was not simply “an amendment to the re-housing reasons” relating to the existing 2017 bands, as Mr Ahluwalia suggested in his skeleton argument.

In the course of his oral submissions, it was necessary for Mr Ahluwalia to argue that this automatic designation was itself flawed, or at least of no consequence, because the Claimant’s case rests upon being able to demonstrate that, for all intents and purposes, she has always been a Band 3 applicant. However, this is not a permissible argument. Given its wide discretion, the Council was entitled to introduce a system by which all pre-existing one-bedroom overcrowded applicants were automatically designated as Band 4. The existence of the new Band 4 and of that automatic re-designation establishes that, in so far as is relevant, the 2022 scheme was not a continuation of the old. And the new scheme simply did not provide for overcrowded by one-bedroom applicants to retain the Band date that they had under the 2017 scheme. It follows that the Council did not, in not giving the Claimant her old Band date, fail to apply its own policy under the 2022 scheme.

In further support of his argument that it did, Mr Ahluwalia argues that the screenshots taken from the Council’s bidding system, referred to above at paragraph 37, demonstrate that other than one-bedroom overcrowded applicants under the 2017 scheme have been treated more favourably under the 2022 scheme than her. However, that is not correct, for the reasons set out above.

I agree, however, that it is regrettable that neither the 2022 scheme, the accompanying guidance, nor the 25 October 2022 letter to the Claimant made clear that, in the event that a one-bedroom overcrowded Band 4 applicant successfully applied to be moved up to Band 3, he or she would lose their old Band date and be given a date corresponding to the date of the application. However, this failure of communication does not vitiate the legality of the 2022 scheme. Substantively, applicants are nevertheless put into a better place, by virtue of the uplift, than they would have been had they remained in Band 4 with the older Band date. In any event, the 2 December 2022 email from the council to HASL, who were assisting the Claimant, did make it clear what the consequences would be of a successful application.

Mr Ahluwalia’s second submission, that the decision of 9 December 2024 was irrational and that, if it in fact flowed from a reasonable interpretation of the 2017 scheme, then the scheme itself was irrational, is unsustainable. The argument is, essentially, that putting the Claimant into Band 4 and requiring her to apply to move up to Band 3, thereby giving her a new (and more recent) Band date, is so unfair and unreasonable as to be irrational.

In my view, for the reasons given above, the Council was entitled to set the parameters of the 2022 scheme as it did, and there was nothing irrational in the way that it was applied to the Claimant. There is nothing in the fact that five former Band 3, but now Band 4, one-bedroom overcrowded applicants were, apparently, allowed to retain their existing Band dates on being moved into Band 3. The evidence from the Council is that these dates have since been corrected.

There is, contrary to the submissions that were made, no general power vested in the Court to overturn a discretionary decision on the basis that it is perceived to have operated to a Claimant’s general disadvantage, short of the Court accepting that there has been a classic public law breach.

I am bound to conclude that there has been no such breach here and that neither the Defendant’s 9 December 2024 decision nor the 2022 scheme, in so far as it provided for one-bedroom overcrowded applicants, were unlawful. The application for judicial review must be refused.