|Judgments - R (on the application of Ahmad) (Respondent) v Mayor and Burgesses of London Borough of Newham (Appellants)
57. So far as the previous cases are concerned, courts have held on a number of occasions that authorities were acting irrationally by having schemes which did not effectively prioritise different degrees of need between applicants who satisfied one or more of paras (a) to (e) of section 167(2) - See the first instance decisions such as R v Islington London Borough Council, Ex p Reilly and Mannix (1998) 31 HLR 651 and R v Westminster City Council, Ex p Al-Khorsan (1999) 33 HLR 77 (both of which were approved by the Court of Appeal in R (A) v Lambeth London Borough Council  EWCA Civ 1084,  HLR 998).
58. However, those cases were decided before the amendments to section 167 made by the 2002 Act took effect. Accordingly, the second, third and fourth of the five points enumerated earlier in this opinion had no application. It would not be profitable to consider whether those cases were nonetheless rightly decided: the 1996 Act has been subsequently amended in highly relevant ways, and, even if it had not been, the issues in those cases were inevitably fact-sensitive. The essential point about those cases for present purposes is that, contrary to the views expressed below, they can no longer be relied on, as the centrally relevant statutory provision, subsection (2) of section 167, has been replaced by new subsections (2) and (2A).
59. The current circumstances of the respondent and his family cannot fail to engage both sympathy and concern. Mr Ahmad (who is chronically depressed) and his wife live with their four children, in a two-bedroom flat. One of the children has serious physical disabilities, and another suffers from various allergies and has a general behaviour disorder and they are each said to need separate bedrooms. On any view, the flat is seriously overcrowded (but not statutorily so). Mr Ahmad has been on Newhams waiting list for housing since August 1999.
60. Both the Deputy Judge and Richards LJ began with a fairly full description of the sad circumstances of Mr Ahmad and his family. It could well be an unfair suspicion on my part, but this may indicate that, when they came to consider the Scheme, the courts below were impressed by the fact that, despite their very unsatisfactory living conditions, Mr Ahmad and his family had still not been provided with Council accommodation after eight years. However, save in the most exceptional circumstances, it would be wrong in principle to have any regard to the housing circumstances and requirements of an individual applicant when considering the validity of a housing allocation scheme under Part 6 of the 1996 Act.
61. Mr Andrew Arden QC, for Newham, told your Lordships that, though the need of the Ahmad family for alternative accommodation is undoubtedly pressing, indeed urgent, there are a great number of other applicants whose housing needs would be regarded by most people as even more pressing or urgent. Unfortunately, I have no difficulty in accepting that submission, which was (very properly) not challenged by Mr Luba. Indeed, Mr Luba accepted that he was not relying on Mr Ahmads particular circumstances: the present application is an attack on the Scheme in principle, and not an attack on Newhams failure to provide Mr Ahmad and his family with accommodation under Part 6 of the 1996 Act.
62. This point also highlights how inapt it is for the courts to interfere with housing allocation schemes, save in clear and exceptional circumstances. This follows from the striking imbalance between supply and demand for housing, the very large number of families with an urgent need to be housed under Part 6 of the 1996 Act, and the almost infinite number of different permutations of circumstances giving rise to the urgency. Knowledge of the circumstances of applicants generally, long term strategy considerations, expertise, political and social awareness, and local knowledge all have a part to play when it comes to formulating and implementing a housing allocation scheme. With information essentially consisting of the Scheme itself, the circumstances of the particular applicant and a few statistics (of questionable mutual consistency), the court should be very slow indeed to second guess Newham.
63. As to the Code, the original version, issued in 1996, has been amended from time to time. The version in force at the time Mr Ahmads application was made followed the decision of the Court of Appeal in Lambeth  EWCA Civ 1084,  HLR 998. This may present a problem, in the light of the effect of the amendments to section 167 effected by the 2002 Act, as already discussed.
64. In any event, nothing in the Scheme is inconsistent with the general thrust of the Code, which is accurately summarised in the accompanying letter from the Office of the Deputy Prime Minister (dated 11 November 2002) as being that a scheme should accord reasonable preference to those with the most urgent housing need". Indeed, in my view, there is nothing in the Code which undermines the statutory freedom accorded to authorities by section 167(6), subject always to complying with the other express statutory requirements. Indeed, following the amendments made by the 2002 Act, as foreshadowed by the Green Paper, the Code has become less prescriptive. Quite apart from this, the terms of section 169 do not even require an authority to follow the recommendations of the Code, although an authority would no doubt have good reasons before not doing so
The second issue
65. In paras 17 to 21 of her opinion, Baroness Hale explains why it is not unlawful for the Scheme to provide for up to 5% a year of the CBL properties to be allocated to Tenants Seeking a Transfer. There is nothing that I can usefully add to her explanation, with which I wholly agree.
66. For these reasons, which coincide with those of Baroness Hale, I would allow the appeal of the London Borough of Newham; it follows that the claim for judicial review should be dismissed insofar as it challenged the legality of the Appellants housing allocation scheme and the declaration made in paragraph 2 of the order of the Administrative Court should be set aside (quoted by Baroness Hale in para 11 above).
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