Case No: C1/2002/0919
Neutral Citation No [2003] EWCA Civ 919

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(ADMINISTRATIVE COURT)
(SULLIVAN J)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 3rd  July 2003

Before:

LORD JUSTICE PILL
and
LORD JUSTICE JUDGE

- - - - - - - - - - - - - - - - - - - - -

Between:

	   The Mayor and Burgesses of the London
Borough of Lambeth  	Appellant	
	- and -		
	Matthew LINDSAY	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr R Bhose (instructed by London Borough of Lambeth) for the Appellant
Mr I Colville (instructed by Flack & Co, Wandsworth) for the Respondent

Hearing date: 25th  June 2003
- - - - - - - - - - - - - - - - - - - - -

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Pill: 

1.	On 23 July 2002 [[2002] EWCA Civ 1084], a Court consisting of Judge LJ and Collins J sitting with me dismissed an appeal by the London Borough of Lambeth (“the Council”) from a decision of Sullivan J dated 11 April 2002 in the case of Lindsay (“the applicant”) and a decision of Sir Christopher Bellamy dated 5 November 2001 in the case of “A”. The Court found that the Council housing allocation scheme, dated July 2000, was in certain respects unlawful. Sullivan J had made a declaration that:
“Group D of the [Council] Housing Allocation Scheme, July 2000 is unlawful in that:
(i)	it is not framed as to secure the statutory reasonable preferences required by section 167(2) of the Housing Act 1996, and
 (ii)	it fails to provide for a composite assessment of need.”
2.	The Court dealt with the general legal issues arising upon the allocation scheme. Collins J considered Group D in paragraphs 16, 18, 20 and 21 of his judgment, which was the leading judgment. The facts of the particular cases were not in dispute and the Court was not invited to consider in detail the consequences for the applicants of the rulings upon the legal issues. The Court dismissed the appeal and further ordered that:
“(3)	The [Council] reassess each claimant’s application for accommodation making a composite assessment of their housing needs in accordance with 167(2) Housing Act 1985 by 31 August 2002, with liberty to apply.”
3.	In the case of “A” that reassessment was made and “A” takes no further part in the proceedings. The applicant sought before Sullivan J only a declaration of illegality. At the appeal hearing, relief in the form of paragraph 3 was sought and given. When the judgments were handed down, it was argued on behalf of the Council that, because of practical difficulties, relief in that form should not be given. The Court took the view that the applicant, having successfully brought proceedings against the Council, was entitled to a reassessment.
4.	In relation to paragraph 3, the Council sought an extension of time under the liberty to apply provision. The application was put to me on paper and I directed:
“Paragraph 3 of the order was however inserted for the benefit of the claimants, neither of whom, it appears, is seeking further relief under the paragraph at this stage. If either of them does, a further hearing to consider the respondents’ submissions may well be appropriate, though I appreciate the difficulty in re-constituting.”
5.	The applicant (though not “A”) maintained that he was entitled to a reassessment. It has indeed proved impossible to re-constitute, within a reasonable time, the Court which heard the appeal and, with the consent of the parties, it has been heard by Judge LJ sitting with me. The Council have placed very considerable written evidence before the Court seeking to explain why a new allocations policy, prepared as a result of the decision of the Court, cannot be implemented before February 2004, that is 19 months after the previous scheme was stated  in this Court to be unlawful and 22 months after the decision of Sullivan J. In the course of the hearing, the Court, while understanding the complexity of the proposed scheme and difficulties involved, expressed grave misgivings about the passage of time and the continued application of a scheme which the Court has declared unlawful, for so long a period. The suggestion was made that evidence might be called so that the justification advanced could be explored more fully.
6.	Following an adjournment to enable the parties to consider the position, the Court was told that the parties had come to terms in relation to paragraph 3 of the order of the Court. The Council had agreed to comply with the order on a basis which was acceptable to counsel appearing on behalf of the applicant. That being so, he did not need to pursue the application. The Court had convened only to consider paragraph 3 of the order, and the parties being agreed about that, there was no need and it was inappropriate for the Court to consider the matter further.
7.	It should be underlined that there has been no promise by the Council that an offer of accommodation will be made by them to the applicant within a certain time or at all. However, his counsel is content with the basis upon which the Council have agreed to reassess Mr Lindsay’s application. The Court has not approved the basis on which the reassessment is to be conducted. Its lawfulness neither receives nor requires the approval of this Court, which has confined its attention to the very limited matter brought before it, that is whether there should now be a reassessment. 
8.	The Court has been told that there are other pending applications against the Council in the High Court which rely on the judgments already mentioned. As I pointed out at the end of the hearing, the consent order now made does not seek to prevent, and does not prevent, other applicants taking points upon the lawfulness of the current conduct of the Council in the light of the judgments of the Court. The declaration made by Sullivan J stands. 
9.	Clearly the preparation of a lawful policy takes time and it cannot be contemplated that the Council would decline to make allocations in the meantime. I am not encouraging applications to the Court in the meantime but merely making clear that such applications are not precluded by the present outcome. But for the agreement, the applicant would have argued that interim measures should have been implemented. The Council would have argued that such measures are impracticable and could be unlawful. I comment only that the difficulties brought to the attention of the Court in my view serve to highlight the deficiencies in the Group D aspect of the allocation scheme.
10.	It is greatly to be hoped that a lawful policy will be implemented by the Council at the earliest possible time.
11.	As indicated at the end of the hearing, the applicant will have the costs of and incidental to the hearing and a direction that there be detailed assessment of such costs for public funding purposes.

Lord Justice Judge:

12.	I agree.