Lin, (R on the application of) v London Borough of Barnet, Court of Appeal - Civil Division, February 22, 2007, [2007] EWCA Civ 132

Resolution Date:February 22, 2007
Issuing Organization:Civil Division
Actores:Lin, (R on the application of) v London Borough of Barnet
 
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Neutral Citation Number: [2007] EWCA Civ 132

Case No: C1/2006/1277

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Hughes J

Strand, London, WC2A 2LL

Date: 22/02/2007

Before :

LORD JUSTICE DYSON

LADY JUSTICE HALLETT

and

SIR PETER GIBSON

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Between :

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Mr A. Arden QC & Mr J. Manning (instructed by Messrs Pierce Glynn) for the Appellant

Mr C. Baker & Mr N. Dilworth (instructed by London Borough of Barnet (Borough Solicitor)) for the Respondent

Hearing date: 06 February 2007

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Judgment

Lord Justice Dyson:

  1. Part VI of the Housing Act 1996 (``the 1996 Act'') contains provisions for the allocation by local housing authorities of housing accommodation. Part VII contains provisions in relation to homeless persons. This appeal from a decision of Hughes J is concerned with the lawfulness of the allocation scheme (``the Scheme'') established by the London Borough of Barnet (``the Council'') under section 167 of the 1996 Act. The judge held that the Scheme was lawful except in one respect which is not the subject of this appeal.

    The statutory framework

  2. Section 159(1) of the 1996 Act provides that a local housing authority shall comply with the provisions of Part VI in allocating housing accommodation. Subsection (2) provides that allocation is done by selecting or nominating a person to be an introductory or secure tenant of accommodation held by the authority or by another person, or by nominating a person to be the assured tenant of accommodation held by a registered social landlord. An authority must have an allocation scheme ``for determining priorities and as to the procedure to be followed'' (section 167(1)). For this purpose, ``procedure'' includes ``all aspects of the allocation process''. The authority may not allocate housing accommodation except in accordance with its allocation scheme (section 167(8)).

  3. Section 167(2) provides:

    ``(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to-

    (a) people who are homeless (within the meaning of Part 7);

    (b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);

    (c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;

    (d) people who need to move on medical or welfare grounds (including grounds relating to a disability); and

    (e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).''

    The scheme may also be framed so as to give additional preference to particular descriptions of people within this subsection (being descriptions of people with urgent housing needs).

  4. Section 167(2A) provides:

    The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2); and the factors which the scheme may allow to be taken into account include-

    (a) the financial resources available to a person to meet his housing costs;

    (b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;

    (c) any local connection (within the meaning of section 199) which exists between a person and the authority's district.''

  5. Section 167(2E) provides:

    ``(2E) Subject to subsection (2), the scheme may contain provision about the allocation of particular housing accommodation-

    (a) to a person who makes a specific application for that accommodation;

    (b) to persons of a particular description (whether or not they are within subsection (2)).''

  6. Section 167(6) provides:

    ``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.''

  7. Section 169 provides:

    ``(1) In the exercise of their functions under this Part, local housing authorities shall have regard to such guidance as may from time to time be given by the Secretary of State.

    (2) The Secretary of State may give guidance generally or to specified descriptions of authorities. ''

  8. It will be seen that section 167(2) draws a distinction between persons who are homeless (within the meaning of section 175) and those to whom a duty is owed by a local housing authority, inter alia, under various provisions of Part VII of the 1996 Act. Those to whom a duty is owed under these provisions include homeless persons to whom an authority owes a duty to secure that accommodation is available for his or her occupation (section 193(2)). That duty is discharged, inter alia, by securing that suitable accommodation provided by them or by some other person is available (section 206(1)). The appellant is a person to whom the Council owes a duty under section 193(2) which it is currently discharging under section 206.

    The Scheme

  9. The Scheme is based on the award of points. In accordance with Government policy that there should be an element of choice in the allocation of housing, each vacant property is advertised. Applicants are given points to reflect their priority according to certain criteria, and are informed of the types of property for which they are eligible. The applicant with the highest number of points is offered the property. There are far more applicants who fall within section 167(2) (and are therefore entitled to reasonable preference) than there are available properties in which to accommodate them. As at 10 November 2005, the Council had 17,757 applicants on its waiting list for housing under Part VI. At that time, it had approximately 12,000 units within the borough at its disposal, including those that were then occupied. There were approximately 2,300 homeless persons to whom the Council accepted that it owed a duty under section 193(2) and who had been placed in temporary accommodation. The total number of properties that were allocated under the Scheme was just under 800 in 2004/05.

  10. The points system is set out in Annex I to the Scheme. It is detailed and complex. I need refer only to certain elements of it:

    ``Insecurity of Tenure

    30 points if the applicant is living without security of tenure e.g. lodger or guest or street homeless.

    50 points if the applicant is a tenant who has received notice to quit and has no defence to eviction proceedings

    or

    the applicant has been accepted under our Homeless at home scheme

    or

    is living in a refuge because of domestic violence.

    75 points if the applicant is living in emergency homeless accommodation provided by Barnet Council.

    These points will be reduced to 10 if the applicant is found to be intentionally homeless or if the duties under Part VII of the Housing Act 1996 cease.

    Applicants qualifying for 30 or 50 points can also qualify for points for overcrowding, shared facilities etc. Applicants qualifying for 75 points cannot get additional points for overcrowding or poor facilities.

    300 points if living in leased homeless accommodation provided by Barnet Council about to be returned to the landlord.

    Homeless/Reasonable Preference points

    10 points for homeless households needing family sized accommodation* owed certain duties under the homeless legislation by Barnet Council**.

    75 points for homeless childless households needing one bedroom/studio accommodation owed certain duties under the homeless legislation by Barnet Council**

    *as defined in Annex 2

    **under sections 65(2) and 68(2) of Part III of the Housing Act 1985 and sections 190(2), 192(3), 193(2) and 195(2) of Part VII of the Housing Act 1996 as amended.

    Discretionary points

    10 points to homeless households owed a rehousing duty by Barnet Council prior to introduction of the 1996 Housing Act.''

  11. In addition, an applicant is entitled to 10 ``time points'' for each year since joining the Register, subject to a maximum of 5 years or 50 points. Those households unable (on financial grounds) to meet their own housing needs are entitled to 100 ``income points''. Those who are entitled to ``Barnet Residency points'' are entitled to 200 points: they include those who live in the Borough and have done so by choice for the last two years. Finally, there is a category of ``Exceptional needs''. Those who are in this category are entitled to 500 points. They include, for example, (i) young people leaving the care of the Council put forward by Social Services and (ii) Council leaseholders displaced due to the imminent demolition of their property as part of redevelopment who are unable to pursue home ownership due to reasons of extreme financial, social or...

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