England and Wales High Court (Administrative Court) Decisions

1. In these proceedings the applicants challenge the lawfulness of the housing allocation scheme operated by the London Borough of Tower Hamlets, as well as challenging the specific decisions made in their own cases. The applicants are secure tenants or, in Mr Uddin's case, an assured tenant of the Respondent, which is a local housing authority.

2. There are three applications for judicial review before me, but by agreement they have been heard together and I shall deal with all three applications in this judgment.

3. It is not in dispute that each applicant and his or her family occupy at present housing accommodation within the Respondent Borough which is unsuitable for their needs. As an existing tenant of the Respondent Council, each applicant has applied for a transfer within the Council's housing stock, so as to obtain more suitable accommodation. The Council operates an allocations policy for existing tenants who want a transfer, this being entitled "Allocations Policy For Council Tenants Wanting to Move". It first took effect on 1st April 1997 but has been revised a number of times since then. Perhaps, inevitably, it seeks to achieve a system whereby an order of priority can be determined for applications made to the Council for transfer. I say "perhaps inevitably" because it is not in issue that there is an inadequate supply of housing of appropriate types and size within the Borough to meet the demand for it. Consequently, the Council operates a waiting list.

4. Reference is made on behalf of the Applicants to Part VI of the Housing Act 1996 and the Code of Guidance produced by the Secretary of State under the auspices of section 169 of that Act. It is, of course, clear from section 159(5) that the provisions of Part VI of the Act do not apply to the allocation of housing to those who are already secure tenants or assured tenants of the housing authority and in consequence the Code of Guidance does not apply directly in such cases. But I have been referred to a recent decision of Richards J in the R -v- London Borough of Islington ex parte Reilly and Mannix , a judgment dated 2nd October 1998 (unreported) which was a case dealing with a scheme for applications by secure tenants for transfer to other accommodation.

5. In the course of his judgment, the learned judge said this at page 11 of the transcript:

6. There is no doubt that a housing authority has a discretion as to how it exercises its power to allocate housing to existing secure tenants who wish to move and as to how it arrives at an order of priority amongst them. On the other hand, that is not an unfettered discretion. Its exercise will have to reflect the purposes for which the power to hold such property as landlord exists, as well as the normal principles of public law. One notes that in the Code of Guidance the Secretary of State advises that:

7. That advice must be seen as applicable to decisions made on transfer applications and schemes, as well as to those dealing with applications and schemes falling directly under Part VI of the Act, and Mr Rutledge, who appears for the Respondent, does not dissent from that.

8. The provisions of Part VI also require that a scheme for the applications falling within that part of the Act secures reasonable preference for people in a number of categories, including households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds (section 167(2)(e)). That statutory provision does not apply as such in the present cases, but the Respondent Council has, in its allocation policy for transfer applications, sought to reflect such considerations. Having acknowledged those matters, it has to be recognised that Parliament did not think fit to apply the provisions of Part VI of the Act to transfer applications by existing secure or assured tenants. Any guidance to be obtained by reference to those statutory provisions or to the contents of the Code can only be in very broad terms and on the basis that they may help to identify relevant considerations. For example, the Code states at paragraph 5.7 that:

9. One would expect any rational transfer scheme to seek to observe the same principle, at any rate where other factors, such as the requirements of the efficient management of the stock, did not militate against it.

10. By section 106(1) of the Housing Act 1985, it is provided that:

11. That provision remains in force, even though section 22 of that Act dealing with the allocation of housing stock has been repealed. However, as was emphasised in R -v- Canterbury City Council ex parte Gillespie (1986) 19 HLR 7, any policies or rules must not be so rigid that they exclude the consideration of individual cases. That too is a proposition which follows from the normal principles of administrative law.

12. In the form in which it stood in January 1998, the policy was one based on what was described as a Targets Group and Points System. Transfer Applicants were assigned to one of five Target Groups, those being known as Category 1 Health, Decants, Under-Occupiers, Managements and General.

13. At six monthly intervals a certain proportion of the anticipated housing vacancies were allocated to each Target Group.

14. Those Target Groups were defined as follows:

15. Those are the target groups. Within each Target Group a points scheme operated. As the policy stated at paragraph 11.1:

16. There then follows a table, according to which points were awarded for overcrowding, with an increasing number of points for greater degrees of overcrowding; for opposite sexes sharing a bedroom, which at that date simply awarded 25 points to the tenant where a person of ten years of age or more (other than partners) had to share with someone of the opposite sex; for children sharing a bedroom with parents; and for a number of other categories or features, including an allowance for each year on the waiting list. Amongst those other categories was one entitled: "MEDICAL POINTS (AWARDED BY THE HEALTH ADVISOR)". This read as follows:

17. It is not in dispute that those are fixed numbers of points awarded if the application fell into the category in question and were not ones allowing any higher or lower number of points in that category.

18. There were also specific health criteria in a separate document. These defined which households would qualify to come within one of the four medical categories. It will suffice to give just one example for present purposes: Category One, the most urgent group at that time, was defined as:

19. Each of the other categories was defined in a similar way, in the sense of referring to "any household that includes a person with..." As one would expect, the characteristics of that person then differ from category to category.

20. Subsequently, in March 1998, certain charges were made to the policy. In particular, a new medical priority category was introduced to apply in exceptional circumstances and producing a total of 500 points. It was described as "Health Management" and was defined in a new set of criteria so as to apply to:

21. Finally, in March 1999, there was a further change made to reflect the decision in R -v- Lambeth London Borough Council ex parte Ashley (1996) 29 HLR 385. I shall need to refer to this case more fully later in the judgment, but for present purposes it is enough to note that the respondent to the present proceedings changed its policy in respect of the number of points to be awarded where a household included persons of the opposite sex sharing a bedroom. It did so in such a way as to reflect the number of persons in the household who were in that situation. Previously, as I have indicated, the policy had simply awarded 25 points whenever such a situation arose in a household, irrespective of the number of persons involved.

22. Mr Uddin currently lives in a two-bedroomed flat on the fourth floor of a six storey block. He shares that accommodation with his wife and five children, the oldest of whom is 12. Three of the children are sons and two are daughters, including one called Sultana Begum who is now aged 11.

23. Mr Uddin first applied for a transfer in March 1993, but for present purposes it is enough to note that in 1995 three of the children, including Sultana Begum, were diagnosed as suffering from Haemoglobin Thalassemia, a blood disorder, and chronic anaemia with a reduced exercise tolerance. Not only were the family located in a fourth floor flat, but there was evidence that damp and overcrowding in the flat was aggravating the health problems.

24. On 29th March 1995, the authority upgraded the household's medical priority to 200 points, putting Mr Uddin into what was at that time the top medical category, Category 1 and so into Target Group, Category 1, Health.

25. In July 1997, Sultana Begum was diagnosed as suffering from acute lymphoblastic leukaemia. This information was considered by the Authority's Health Advisor to the Housing Department, Mr Ian Cruickshank, a registered general nurse, and in September or October 1997 he recommended that the Applicant, Mr Uddin, should be treated as within medical Category 1 with 200 points awarded for medical reasons. This, of course, involved no change in the number of points awarded for medical reasons. As at that date his total points stood at 355. The Health Advisor repeated the same recommendation in September 1998 (a year later) by which date his points had grown to 396, mainly through allowance for the passage of time.

26. Things changed radically for the Uddin family in December 1998, because Mr Cruickshank then received advice that Sultana's condition meant that living in overcrowded accommodation could be life-threatening for her. He recommended that an award under the "Health Management" Category, brought in in March 1998, should be made. That was accepted, and the medical points were increased to 500, putting Mr Uddin and his family at the top of the list for rehousing. Not surprisingly, he is content with this relatively recent development, which has taken place since these proceedings were commenced. However, Mr Reeder, who has appeared for all three applicants, relies upon the history of Mr Uddin's case to demonstrate what is said to be the irrationality of the Council's policy.

27. Mr Tahid and his family occupy a two bedroom flat on the second floor of a block. His family consists of himself, his wife and their five children, four sons and a daughter, aged 12 or less. He too has applied for a transfer. Mr Tahid himself suffers from bronchial asthma and epilepsy, and on 26th March 1997 his medical points were increased to 100, that is to say, putting the household into Medical Category 2. According to a letter from the health authority dated 6th April 1998, this was done because of Mr Tahid's own respiratory disease, and that has been confirmed by counsel in the course of argument. This applicant fell into the category group entitled "General".

28. However, it then became clear that the health of the children in the family were suffering. In a Children in Need Assessment dated 18th September 1998, it was reported that two of the sons had asthma and another suffered from nocturnal bedwetting. The Health Advisor reported on 24th September 1998 that "all the children's psychological health and development is being compromised by the current housing". He recommended, however, that the applicant remain in Medical Category 2, with 100 points still being awarded on this score. Mr Tahid currently has a total of 290 points.

29. Jacqueline Curtis lives in a fourth floor, two-bedroomed flat with her four children. The eldest, Roy, is aged 16; the youngest, a daughter, is aged 2. One of the daughters, Jade, who is now 7 suffers from asthma; Roy has been recognised as having special educational needs and Miss Curtis herself has been diagnosed as suffering from depression. The flat is damp, and the three older children have to share a bedroom. The Applicant first sought a transfer in 1993, although not then on medical grounds. On 30th July 1997, an award of 100 points for medical Category 2 was made by the Council. A report by a social worker in August 1998 recorded that Jade's asthmatic problems seemed to have greatly improved and that the children generally appeared to be in good health. It noted that the main problem was the overcrowding for which the tenant had been awarded points. This applicant was and is in the General Target Group.

30. Two arguments are advanced on behalf of the Applicants. The main one is that the Council's scheme is irrational, in that once one person in a household comes into a particular medical category, no allowance is made for the fact that others in the same household come into that category or have other health problems. If, as originally in the Uddin case, one member of the household qualifies for Category 1 then 200 points are awarded. No more points can be obtained even if three people qualify for that category. The system, submits Mr Reeder, imposes a ceiling. In the same way, once the Tahid family had been awarded 100 points as a Category 2 household because of Mr Tahid's respiratory problems, it made no difference that the children were found to have health problems, in the shape of asthma and bedwetting. To ignore these elements is, it is said, to leave relevant considerations out of account.

31. Mr Reeder relies on both the Ashley and Reilly and Marrix decisions as demonstrating the irrationality of ignoring the number of people in a household who are affected by a particular problem. He argues for what he has called a "composite assessment".

32. His supplementary argument is that social factors, such as the behavioural effects of overcrowding, are not taken into account in the award of medical points because of the ceiling approach. Nor, he says, are they reflected in the allowance for overcrowding, because that is based simply on the numbers of people in the accommodation, a purely numerical approach. He points in particular to the Curtis case as an illustration of this, although he contends that it also arises in the Tahid application.

33. I say at once, that I see no force in this supplementary argument. If overcrowding leads to health problems or aggravates such problems, then according to the allocations policy those consequences will be reflected in the award of points on health grounds (subject that is to the main argument about the numbers of people in a household with medical problems). Thus the document setting out "Criteria For Rehousing On Health Grounds" has a note which reads:

34. Of course, there may be behavioural consequences of overcrowding which do not qualify for consideration for an award of points on health grounds. But those seem to me to be the type of effects which one would readily expect from overcrowding, such as increased tension in the family, difficulties experienced by children in doing homework and so on, and it is because of such matters that points are awarded for overcrowding in the first place. It is true that such points are awarded on a numerical basis, reflecting the degree of overcrowding, but it is not unreasonable for a local housing authority to take the view that that is an appropriate way of reflecting the non-health problems caused or aggravated by overcrowding. It would not be surprising if such problems became greater as the degree of overcrowding increased, and that is what the allocation policy reflects on this aspect.

35. This subsidiary argument therefore adds nothing to the main argument about the alleged failure of the policy to reflect the number of people in the household with health problems. It is to that main issue I now turn.

36. In effect, three arguments are advanced on this on behalf of the respondent council. First, it is contended that the allocations policy does provide for a composite approach to the award of medical points. Mr Rutledge says that a particular award may be the result of a single member in the household having a medical need which qualifies for that award or it may be the result of an assessment of the composite medical needs of more that one person in the household. In support of that latter proposition, he draws attention to three documents all relating to the application by Miss Curtis. The first is a form completed by the Health Advisor on 29th July 1997, which does indeed record the health problems suffered by Miss Curtis, her son Roy and her daughter Jade. That does not seem to me to advance the argument about how medical points are actually awarded. It seems to be more a factual summary of the household's medical problems, which would need to be known whatever method was being used to arrive at an award. Secondly, my attention has been drawn to a passage in the affirmation by the Health Advisor, Mr Cruickshank. At paragraph 6, Mr Cruickshank states:

37. Again, that again seems to me to be an ambiguous statement about whether an award is made on a composite basis, particularly given the final sentence. What, one is bound to ask, happens if more than one member of the household is effectively housebound or if a further member has some medical problem? Indeed, Mr Cruickshank goes on in the next paragraph to say:

38. The third document referred to is a letter dated 6th April 1998 from the Allocations Manager which says, in part:

39. On the face of it, nothing could be clearer. But the affidavits and affirmations filed on behalf of the respondent repeatedly make the point that to award points in respect of individual members of a household could produce inequitable results, such as a family with several members each suffering from a mild condition taking priority over a person who is housebound or severely ill and requires urgent rehousing. That does not suggest that the Council is operating a composite approach.

40. To resolve this apparent conflict it is necessary to look at the policy itself which is under challenge, and in particular the detailed Health Criteria in their latest form. Thus, "CATEGORY THREE: 50 POINTS" is defined as:

41. An example is then given of a person with asthma who has recurrent exacerbations and is living in significantly overcrowded conditions.

42. An example is then given of a person experiencing great difficulty in accessing their home or essential facilities within the house, ie, leaving and entering the property if the lift is out of order, but they are not housebound.

43. The example is given, amongst a number of others, of a person who is housebound or effectively so.

44. Finally, the new top category Health Management (500 points) is one the qualifications for which have already been set out earlier in this judgment. Four ways of qualifying are set out there, such as being terminally ill or where there is an immediate risk to life or limb.

45. It can be seen that to enter one of these categories it is both sufficient and necessary for one member of the household to meet the particular definition. Thus, the household will qualify for Category 2 and receive 100 points if it has one member with a permanent and substantial disability whose housing is significantly affecting them, as in the example by experiencing great difficulty in accessing their home, but are not housebound. The household will remain in that category with the same number of points even if two or three members of it have the same problem. No more points will be awarded. It is only if one or more members are judged to have their health problem severely affected by their living conditions that the household qualifies under Category 1, for example, because one or more of them is housebound.

46. Mr Rutledge argues that these are subjective and vague judgments to be made by the Council's officers, but one has to assume that they are judgments made honestly and in accordance with the criteria. The position becomes even clearer with the division between Category 1 and the top Health Management Category. Once again, if the family has a member who is housebound, it qualifies for Category 1 and 200 points. It will receive no further medical points even if three members of the household are housebound, unless and until it can said that one of the criteria for the top category is met, such as one person being terminally ill.

47. So the policy itself is clear. One person in the household who meets the criteria for a given category brings the household the stated number of medical points. No more medical points are added because further members of the family qualify for the same category, or indeed for any lesser category.

48. This would seem to be what happened in the case of the Tahid family, where there was an award of 100 points originally, because of Mr Tahid's respiratory disease, and a later recording of the additional health problems of the children had no effect on the number of point enjoyed. Unless one member of the family can pull them up into a higher points category because of his or her more serious condition, a household will remain in a medical category, irrespective of the number of people who qualify for inclusion in that category.

49. I, therefore, cannot accept the respondent's first argument, namely that its policy provides for a composite assessment of the household's medical needs. It does not.

50. The second contention advanced is that the apparent rigidity in the policy is capable of being overcome by the exercise of discretion left to officers by the policy. In this context, Mr Rutledge draws my attention to two ways in which additional points can be awarded under the policy. First is by an award of 50 points for what is called "less serious management priority". In this way, it is said, the position of a household in the queue can be improved at the officers' discretion. The other way of achieving that is said to be by recategorising a household from their existing Target Group, whether Category 1 Medical or General to the "Managements" Target Group. The Head of Area Housing Services has a discretion to include a tenant in this Target Group if he agrees that the tenant should be moved for "any other reason".

51. In dealing with this topic of discretion, Mr Rutledge seeks to distinguish the decision in Reilly -v- Mannix , where Richards J did not regard the discretion there existing as providing the answer to the lack of any possibility of a composite assessment. The learned judge said this:

52. Mr Rutledge contends that the discretion available in that case was too arbitrary and was not sufficiently targeted towards some specific housing issue.

53. It is true that the Tower Hamlets' Scheme does, to some extent, seek to focus the exercise of the Management priority discretion, in that it gives in its policy documents examples of the situations which would merit the addition of "urgent management priority". The examples consist of cases of real or threatened physical violence, persistent harassment, serious neighbour disputes and ones where rehousing will achieve additional family support, no doubt by moving nearer to other family members. There is no suggestion in the documents that such awards are made or would be made to deal with the presence of more than one person in a household with a particular health problem. Nor do the facts of the present three cases indicate any consideration of an award on such a basis. Indeed, the evidence is to the contrary. For example, in the Uddin case, the review of that family's position was carried out in October 1998 at a time when Sultana Begum's leukaemia was known about and when two of other children were suffering from thalassemia and chronic asthma. The result of the review was a memorandum from the Assistant Head of Area Housing Services dated 5th October 1998 which, in its material part, reads as follows:

54. No evidence has been put before the Court of any instance, whether in relation to these three applicants or otherwise, where the discretion has been exercised so as to reflect the problem of more that one member of the family qualifying under a particular medical category. In all the circumstances, I cannot accept that if the stated policy is irrational, it can be saved because of the existence of a discretion under the provisions referred to. That discretion may be more focused than the one in Reilly -v- Mannix , but its focus is not directed towards the problem raised in these applications. Beyond those matters on which it is focused, it becomes, as in Reilly -v- Mannix , an arbitrary exercise of discretion.

55. Finally, it is argued on behalf of the Council that the policy is not irrational and that it would produce anomalies to multiply an award of health points by the number of persons in the household falling into a given category. Reliance is placed on the familiar passage from Lord Brightman's speech in Ex parte Puhlhofer [1986] AC 484 at 518 where his Lordship emphasised that certain matters are best left by the courts to the judgment of local housing authorities.

56. Mr Rutledge contends that Reilly -v- Mannix was a very different case from the present ones, since there the authority awarded only limited points for additional problems.

57. I accept that a scheme of this kind is only open to challenge if it can be said to be irrational or if it offends against other basic principles of administrative law, such as failing to take into account relevant considerations. It was on such a basis that the scheme in Ex parte Ashley was struck down. There the authority's policy provided that where persons of the opposite sex over a certain age had to share a bedroom, 20 points would be awarded, irrespective of the number of individuals involved. The Court held that that was illogical and irrational, and took no account of the number of persons affected. Tucker J said:

58. In a similar way in Reilly -v- Mannix , the court held that the method of calculating points was incapable of fairly assessing need, and one of the two respects in which it failed was because it:

59. I emphasis those last few words. Those cases simply make the obvious point that a household's need is greater the more people are experiencing a particular problem, whether it be sharing a bedroom with a person of the opposite sex, overcrowding or health problems. A rational allocations policy should make allowance for that, because otherwise households with markedly different needs are not distinguished. A household with three people suffering from a particular medical condition to a given degree has a greater degree of need, so far as health grounds go, than a household with only one member in the same condition. To award those households the same number of medical points is irrational, and such a scheme fails to take into account the needs for rehousing on medical grounds of those additional members of the family. They are disregarded. On both those grounds of irrationality and failure to take into account material considerations, I find the current policy unlawful.

60. That does not mean that an allocations scheme has simply to multiply the number of points in a given category by the number of persons in the household who fall within it. That could give rise to anomalies. No doubt, some form of sliding scale would be more appropriate,, as has been done in the case of persons of opposite sexes sharing a bedroom, where the original policy awarded 25 points for a household where this happened, but where the amended policy reflecting the Ashley decision awards an additional five points for each additional person above two persons who share such a bedroom. There may be a number of ways of building into the policy some numerical recognition of the number of persons in a household in a particular medical category. It is for the housing authority to frame the appropriate policy and not for this Court to do so. What I am in no doubt about is that the policy in its present form is unlawful insofar as it fails to make adequate provision for a composite assessment of housing needs on medical grounds of households where an application to transfer has been made.

61. I turn lastly to the topic of relief. Subject to anything counsel wish to say, I would propose to make a declaration along the lines indicated. Beyond that, relief in the individual cases before me must differ. Mr Uddin does not now seek any quashing of the decisions relating to him, so I shall grant no further relief beyond the declaration in his case. In Mr Tahid's case, I am satisfied that the Council has failed to act rationally to take into account all relevant considerations. The decisions by the respondent dated 9th April 1997 and 16th April 1998 relating to him will be quashed. I regard mandamus as being inappropriate. It is for the respondent to reassess his family's needs in a proper fashion.

62. In the case of Miss Curtis, I am not persuaded that the family's problems have been inadequately assessed, especially given the latest medical evidence. The Council have reflected the problems caused by overcrowding to an adequate degree by the points awarded for overcrowding and some allowance does, in fact, seem to have been made for the extent of the medical problems in the family, even though this does not accord with the formal stated policy. I, therefore, am not prepared to quash the Council's decisions in that case or to grant any relief beyond the declaration to which I have referred.

63. The form of the declaration, Mr Reeder?

64. MR REEDER: My Lord, perhaps I can hand up a draft order that was prepared, which my learned friend has seen.

65. MR REEDER: The only material difference is----

66. MR JUSTICE KEENE: Just bear with me while I read it.

67. MR REEDER: My Lord, the social factors are the only material difference. My Lord, that was included on the basis primarily of the Applicant, Jacqueline Curtis and her son Roy, and the issues which pertain to him. My Lord will recall----

68. MR JUSTICE KEENE: As far as I am concerned, I am not prepared to include the words "and social" for the reasons I have indicated in the judgment.

69. MR REEDER: For that reason I do not pursue it. My Lord, if we take those words out, one hopes the draft declaration reflects your Lordship's judgment.

70. MR JUSTICE KEENE: I think it does. Do you have any comment on that, Mr Rutledge?

71. MR JUSTICE KEENE: It clearly has to be read in the context of this case that both parties understand what it means on that footing and I am hope it is tolerably clear. Very well, I am prepared to make a declaration in those terms and I will initial that.

72. MR REEDER: My Lord, so far as certiorari is concerned, we have heard from your Lordship's judgment that two can come out in any event.

73. MR JUSTICE KEENE: You do not need that.

74. MR REEDER: My Lord, as far as the costs are concerned, I understand this is a new form of words, a detail assessment. My Lord, in far as the declaration is good for all three Applicants, my Lord, they are all legally aided and I seek the costs in relation to all three, although I hear what your Lordship says about Jacqueline Curtis and the assessment in that case.

75. MR JUSTICE KEENE: Yes. Mr Rutledge do want to say anything on the question of costs?.

76. MR RUTLEDGE: My Lord, yes. In my submission the appropriate order would be no order as to costs for this reason: the main plank of the Applicants' challenge on paper at least was that points should be aggregated where more than one member of the family qualified under a particular category of housing need, that is plain from the letters before action, the Notice of Motion and the affidavit. On that issue, that was plainly a serious issue so far as the authority was concerned, my Lord has seen how it responded in its evidence. My Lord, the local authority has been successful albeit that its scheme has been declared unlawful for other reasons. In my respectful submission, the fair order on balance would be no order as to costs.

77. MR JUSTICE KEENE: Thank you. I need not trouble you, Mr Reeder. Although the ground may have shifted slightly in the course of argument, I do not regard that as being a fundamental shift. The matter has been argued largely on the basis which I have dealt with in the course of my judgment, and on that basis, on the fundamental issue of the unlawfulness of the authority's scheme, the authority has lost.

78. You do not seek to distinguish any of the particular Applicants do you, Mr Rutledge?

79. MR RUTLEDGE: My Lord, I do not think I can.

80. MR JUSTICE KEENE: Very well, there will be an order then that the respondent pay the applicants' costs, it will be on the standard basis, as I gather it now is. I do not know if the order needs to make express provision for that, no doubt the associate will tell me if it does, but that is what I intend and you are quite right it is to be determined by detailed assessment as it is now called if not agreed.

81. Are there any other matters I need to deal with?

82. MR REEDER: My Lord, I think not.