Hammersmith allocation scheme ruled unlawful

Jakimaviciute v LB Hammersmith & Fulham

 

In an important decision handed down on 6th November 2014 the Court of Appeal has held that part of the allocation scheme adopted by the London Borough of Hammersmith and Fulham is unlawful. The council had attempted to disqualify people to whom it owed a homelessness duty from applying for an allocation of social housing if they were in temporary accommodation that the council thought was suitable. The Court of Appeal held that this was a breach of the Council’s duty under section 166A(3) of the Housing Act 1996 under which it had to give a reasonable preference to certain categories including people it had accepted as homeless. The Court held that the disqualification amounted to an attempt to re-write the statutory definition set by Parliament. The decision will affect around 500 applicants in Hammersmith and Fulham alone and will have to be followed by housing authorities across the country. Significantly, the Court also rejected the Council’s argument that its duty to give a reasonable preference did not even apply to any decision it might make as to who qualified and who did not. If that argument had been accepted then it would have had far-reaching implications because it would have allowed any council to side-step its duty to give preference to vulnerable groups simply by saying that they did not qualify in the first place.

 

The case also sheds a light on the government’s legal aid reforms. This was an application for judicial review where the claim had been rejected on the papers and following an oral hearing. On both occasions the court accepted the council’s argument that the reasonable preference duty did not apply to qualification decisions at all. Permission was then granted on the papers by the Court of Appeal with a direction that the claim should  be heard in that court. The present judgment rules that the council’s argument on which they succeeded before is “unsustainable”. Despite this, under the current legal aid regime all of the work between making the claim and the application to the Court of Appeal would have been unpaid if permission had not been granted. Hard-pressed legal aid practices cannot bear that level of risk of non-payment and under the current regime this successful claim may well not have been pursued.

 

Martin Westgate QC and Ben Chataway acted for the successful claimant instructed by John McNulty of Turpin & Miller LLP. 

 

To view the judgement please see here.

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