• Friday, February 3, 2023
Housing Barrister Summary of Khayyat & Anor v Westminster City Council [2023]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent case of Khayyat & Anor v Westminster City Council [2023] EWHC 30 (Admin).

This was a judicial review claim brought by two Claimants concerning the lawfulness of the Defendant’s Housing Allocation Scheme (“the Scheme”). In particular, the subject of the review was a policy which enabled the Defendant to exclude from its housing register homeless persons to whom the duty pursuant to section 193(2) Housing Act 1996 (“the Main Housing Duty”) was not owed.

The facts

The Defendant accepted that each Claimant was homeless but did not accept that it owed either the Main Housing Duty. The effect of the Defendant’s Scheme was to limit places on its register to only homeless persons to whom the Main Housing Duty was owed. The Scheme accordingly had the consequence of excluding categories of homeless persons who were otherwise eligible under the Act. The Defendant initially declined to place either Claimant on its housing register.

By the time of the judicial review hearing, the Defendant had accepted that the Main Housing Duty was owed to each Claimant. The First Claimant became a tenant of secure accommodation, and the Second Claimant became housed in temporary accommodation. The judicial review application was not merely academic thereafter, particularly for the Second Claimant because the question of when she should have been placed on the register had the potential to have practical consequences by impacting her priority on the housing register.

The decision

It was common ground that it is lawful for a local housing authority to adopt a policy which has the effect that some eligible homeless persons are not placed on its housing register. It was also not contentious that the power to do so is not unlimited and that there are circumstances in which such a policy will be unlawful [23].

The judgement notes that the test of what exclusion is permissible and what impermissible is to be found in R. (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438 [30]. It was considered that the test is that exclusion of those otherwise entitled to a reasonable preference is lawful provided it is done by reference to a factor or factors of general application – i.e. factors which are capable of applying to an individual in any of the section 166A(3) categories. Conversely, an exclusion which is by reference to a factor which is not of general application will not be lawful [57]. That it follows as a matter of principle and of analysis that an exclusion by reference to a factor not of general application invariably amounts to a redefinition of the statutory scheme is highlighted within the judgment [58].

In light of this analysis of the test, Mr Justice Eyre concluded that the Defendant’s Scheme was unlawful: it operated to exclude homeless persons from receiving a reasonable preference by reference to factors other than factors of general application [61]. Even if that analysis was wrong, and the correct analysis of the test was whether it thwarted the purpose of the Act by assessment of the proportion of those potentially within the reasonable preference categories who were excluded, the Scheme was still considered to be unlawful [62-64].

Consequently, it was considered that the Scheme was unlawful by reason of limiting places on the register to those to whom the Main Housing Duty was owed and thereby failing to secure a reasonable preference for those to whom section 166A(3) required such a preference to be given. The Claimants were granted declarations to that effect [65].

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