Allocation scheme

April 11th, 2017 by James Goudie KC

In R (XC) v Southwark LBC [2017] EWHC 736 (Admin) Garnham J held that the housing allocation scheme operated by the Council under Part VI of the Housing Act 1996 as amended is lawful.  The relative priorities included priority for working households who are making a contribution to the local economy.  The scheme is indirectly discriminatory, but the critical question is whether the discrimination is justified as being proportionate to achieving a legitimate objective.  The scheme has the legitimate aim it set out: the creation of sustainable and balanced communities and encouraging residents to make a contribution to the local community.  The priority “stars” have a rational connection to that objective.  The real question was whether the scheme is the least intrusive measure which could be used without unacceptably compromising the objective.  Garnham J concluded that, looking at the scheme as a whole, it was.  It involved discrimination in order to achieve the stated aims, which are authorised by primary legislation and follow statutory guidance.  Garnham J said, at paragraph 90: “Those who fall outside the groups given preference are, inevitably, exposed to a detriment.  But that is integral to any reasonable preference scheme”.  Nonetheless, two things must be shown: that the measure adopted is the least intrusive which could be used without unacceptably compromising the objective; and that a fair balance has been struck between securing the objective and its effect on the rights of the class of which the claimant is a member.  Garnham J said, at paragraph 97: “Here the Council has devised a scheme which seeks to address the needs of all the classes of applicant in its area.  It has made provision for those with priority need, for the homeless and the vulnerable, and for those who need to move on medical or welfare or hardship grounds. It is entitled, consistent with the Secretary of State’s Guidance, to favour those in work and those who volunteer”.

Garnham J concluded:-

“98.    I can see no measure less intrusive, less likely to be detrimental to the Claimant, which would not undermine the legitimate objective identified by the council and to which I have referred above. To extend the class of volunteers to include all those who, like the Claimant, provide some measure of care for others living in other accommodation would inevitably reduce the ability of the council to cater for those who benefit from the reasonable preferences provided for by the scheme. To extend the class of working households to include those who cannot work because of the type of disabilities suffered by the Claimant would inevitably conflict with the legitimate preference to be given to those in work. The wider the class the less valuable the benefit of being within it.

99. Even though this allocation scheme does, in my judgment, discriminate against those with the sort of disabilities of which the Claimant complains and against women, especially women who have unpaid caring responsibilities, in my judgment the Defendant has shown that it has adopted a scheme which was the least intrusive possible and which struck the right balance.

100. I am reinforced in that view by the existence within the scheme of provision for exceptional cases. Paragraph 1.1.10 provides that “Any provision in this scheme may be waived in exceptional and limited circumstances at the discretion of the appropriate senior officer…”. It is apparent from that provision that the Council has, very properly, reserved to itself the right to remedy particular incidents of unfairness thrown up by the operation of the scheme. It has a “safety valve”.

101. That is just one respect in which this case differs on its facts from that considered by Judge Waksman in R (H) v Ealing LBC. But questions of justification will always turn on the facts of the particular case. In the Ealing case, Judge Waksman found the discrimination could not be justified; here I find it is.”

At paragraph 38 Garnham J stated, with respect to disputed evidence:-

“Judicial review proceedings are not the appropriate forum for resolving factual disputes, such as the number of times a lift has broken down. The correct approach to disputed evidence in judicial review proceedings is well established. It was summarised as follows by Silber J in R (on the application of McVey and others) v Secretary of State for Health [2010] EWHC 437 (Admin) at paragraph 35:

“(i) the basic rule was that where there was a dispute on evidence in a judicial review application, then in the absence of cross-examination, the facts in the defendants’ evidence had to be assumed to be correct;

(ii) an exception to that rule arose where the documents showed that the defendant’s evidence could not be correct; and that

(iii) the proper course for a claimant who wished to challenge the correctness of an important aspect of the defendant’s evidence relating to a factual matter on which the judge would have to make a critical factual finding was to apply to cross-examine the maker of the witness statement on which the defendant relied.””

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