A housing allocation scheme which prevented a person, accepted by the local authority as being owed a housing duty as an unintentionally homeless eligible person in priority need, from bidding for social housing until 12 months had elapsed following their registration as such was in breach of the duty imposed on the authority by section 166A(3) of the Housing Act 1996 and therefore unlawful.

Judge Blair QC, sitting as a judge of the Queen’s Bench Division, so held in a reserved judgment granting a claim for judicial review brought by the claimant, Hakima Alemi, of the housing allocation scheme adopted by the defendant, Westminster City Council, which prevented her from bidding for social accommodation for a period of 12 months notwithstanding that the authority had accepted it had a duty under section 193(2) of the Housing Act 1996 to ensure she had somewhere suitable to live.

Housing Act 1996, section 166A, as inserted, so far as material provides: “(1) Every local housing authority in England must have a scheme (their ‘allocation scheme’) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. For this purpose ‘procedure’ includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken. (2) The scheme must include a statement of the authority's policy on offering people who are to be allocated housing accommodation— (a) a choice of housing accommodation; or (b) the opportunity to express preferences about the housing accommodation to be allocated to them. (3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to … (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) …”

JUDGE BLAIR QC said that section 166A(3) was concerned with the “allocation” of social housing to statutorily defined groups which had to be given reasonable preference. The differentiation permitted by the legislation (and which the courts should leave to the wide discretion afforded to a local housing authority (“LHA”) and the democratic process) was restricted to adjusting the relative priority of sub-groups by reference to features which none the less afforded them some opportunity to be allocated social housing within the LHA’s current cycle, however remote that possibility might be. Thus, the examples set out in section 166A(5) of the Act reflected the legislative intention to recognise features of the circumstances of applicants for whom, as a sub-group, a LHA could justify a differentiation in the priority they were given within a larger group which had to be given a reasonable preference in the allocation of social housing: see section 166A(3). What those examples in section 166A(5) did not do was to altogether remove them from the potential of being allocated social housing. In a time where there was a paucity of social housing it might have been an entirely theoretical potential, but it was none the less a potential. Although the claimant and her sub-class undoubtedly had tangible differences with (and advantages over) those who were not accepted onto the defendant’s register, none the less for 12 months those differences/advantages did not amount to a reasonable preference in the allocation of social housing. Under the scheme, the claimant had no reasonable preference in the allocation of social housing in the defendant’s then current annual cycle. The amended scheme carved out a whole sub-group which was altogether excluded from the potential of being allocated social housing for 12 months. They had no preference. Part VI of the 1996 Act did not permit the removal of a whole sub-group from a group which section 166A(3) required be given reasonable preference in the allocation of social housing, when that sub-group was not defined by reference to differentiating features related to the allocation of housing, but applied a simple time bar to all who otherwise qualify. The local authority’s allocation scheme was, accordingly, unlawful.