High Court finds that Lambeth does have a discretion to backdate registration date of housing allocation applications

In September 2017, the Claimant applied to join Lambeth Council's housing register, after her third child was born, creating an account in her ex-husbands name. She was living with her (now ex) husband and children in private rented accommodation but was served a Section 21 "no-fault" eviction by their landlord in October 2022.

After receiving a homelessness application, Lambeth Council determined the Claimant was homeless and owed the "main housing duty" under section 193 of the Housing Act 1996. Her priority banding was updated to 'Band C, Level 1' - Medium Priority, under Lambeth's Housing Allocation Scheme 2013. She was also given a new housing register account in her own name; however, the account registration date was recorded as 8 February 2023. This is despite the Claimant previously registering for an account in 2017.

The solicitor's request to Lambeth in March 2023 to backdate the Claimant's housing waiting list account to 2017 did not receive a response. A second request in April 2023 did not receive a response.

In defending the judicial review claim, Lambeth had denied that it has any such discretion under its "Housing Allocation Scheme 2013". In October 2023, Lang J granted the Claimant permission for judicial review.

The Claimant argued that Lambeth's Housing Scheme contained powers to backdate the registration date, but alternatively, if not then the Scheme was unlawful, on the basis that it was discriminatory (under both the Equality Act 2010 and Article 14 of the European Convention on Human Rights), irrational, and that the Scheme unlawfully fettered Lambeth’s discretion in such circumstances.

The Claimant relied on case studies of past instances where Lambeth had in fact backdated applicants’ registration dates, arguing that this demonstrated that despite the denial Lambeth did in fact have such a discretion.

Lambeth provided no evidence in response to the claim. Lambeth also did not provide Detailed Grounds of Defence, and had to apply for relief from sanctions in order to continue to participate in the substantive hearing. This application was granted on the papers by Hill J. In a witness statement provided to support the application, Lambeth’s representative stated that: “The Council recognises that there may be some exceptional circumstances not covered by the Scheme. In such instances, the Director of Housing will have delegated authority to make decisions, as he considers appropriate”.

The Claimant asked follow-up questions to clarify the position and sought disclosure. At this point, Lambeth disclosed a supplementary guidance document to its caseworkers that was to be read alongside the Scheme (‘Guidelines for Officers: Exercising Discretion under the Housing Allocation Scheme 2013’). The Claimant’s questions were not answered and no explanation was given as to why disclosure had not been provided earlier.

In the judgment, Deputy High Court Judge Glasson stated Lambeth's Housing Scheme 'makes clear that the date of registration adds priority to an applicant for housing which reinforces the interpretation I have given to how the discretion to “award additional priority to homeless persons” may be exercised.

Secondly, it makes plain that [Lambeth Council] has a discretion as to whether submitting a new application results in the “loss of priority based on registration date”. The Scheme says that such action “may” (rather than “shall”) result in “loss of priority based on registration date”.'

The Judge did not accept the Defendant’s assertion that the 'Claimant’s evidence only demonstrates that there is a discretion on the local authority to backdate the registration date in circumstances where there has been injustice or unfairness (consistent with (GE) Eritrea).'

The judgment is also notable for the court’s criticism of Lambeth’s approach to the duty of candour.

[79] “In its Summary Grounds, the Defendant categorically asserted that it was a "hard fact" that there was no discretion to change the date of registration. It made no mention of cases where the date of registration had in fact been backdated. In response, the Claimant filed detailed evidence demonstrating that in a number of cases the Defendant had exercised a discretion to backdate the registration date. In my judgment at that point the Defendant's duty of candour and co-operation operated such that it should have filed evidence to assist the court with a "full and accurate explanation" in response. Instead, it responded simply by way of assertion in its Skeleton Argument. It did not answer any of the reasonable requests made by the Claimant for clarification of Ms Ojukwu's statement which I have referred to earlier in this judgment. Equally unsatisfactorily, it failed to serve the Guidelines until prompted to do so by its eleventh-hour application to the court for permission to take part in these proceedings.”

[80]"That a public authority is hard pressed and has scarce resources cannot excuse it from compliance with its duty of candour and co-operation." 

The claim was successful on the first ground of challenge, i.e. that Lambeth did in fact have a discretion to backdate applications and made a declaration accordingly. The court found it was not necessary to determine the Claimant’s other four grounds of challenge.