Housing allocation and Catch-22

In his comically surreal war novel, Joseph Heller explained the paradox of Catch-22: ‘A concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind.’ For if you flew more missions you were crazy and did not have to. But if you did not want to you were sane and had to. In other words, a no-win situation.

This was unfortunately the position faced by Mrs Habibo Nur (Mrs Nur), a Birmingham City Council housing applicant with three adult daughters including one, Zakiya, who has learning difficulties and suffers from cerebral palsy. Zakiya consequently requires support with daily living activities and has been assessed as needing a level access shower, access to stairs with bilateral handrails and accommodation with a downstairs toilet.

However, as David Lock QC, sitting as a deputy High Court Judge explained on

19 December 2020 in R (Nur) and another v Birmingham City Council [2020] EWHC 3526 (Admin), Mrs Nur’s Catch-22 was that: ‘She was only entitled to bid for properties which met her daughter’s disability needs but, whenever she did so, she found that her bid was “skipped” because the property was a house and council officers considered that they were obliged to give priority to a family with children under the age of 18 in preference to a family who had a seriously disabled daughter who needed constant care but was over the age of 18.’

In the circumstances, solicitors for Mrs. Nur brought judicial review proceedings challenging the lawfulness of the council’s housing allocation scheme in respect of its discriminatory effects under the Equality Act 2010, and because the council had acted unlawfully in misunderstanding the effect of its own policy. However, because of many irregularities in the council’s handling of the case, the court declined then to proceed with the discrimination elements. These would, pursuant to directions, be brought back before the court ‘at the earliest practicable opportunity’. The court did nevertheless deal with the latter issue concerning the council’s substantively unlawful approach to its housing allocation scheme.

Lock was excoriating on the council’s approach. He said: ‘Unfortunately, this case is an object lesson in how a public body should not respond to public law proceedings.’ For, among other things: ‘The council have failed properly to engage in the proceedings, appear to have misunderstood the nature of public law proceedings and, when it finally started to engage with the issues at a very late date, completely misunderstood the duties on it as a public body.’ And while the court recognised the current ‘considerable stresses on anyone working in local government’, which call for ‘an appropriate degree of latitude to any public body in the present circumstances’, nevertheless, ‘the approach taken by the council in this case [had been] far outside any legitimate area of flexibility’.

The council’s ‘series of lamentable failures in the conduct of this litigation’ included failure throughout of its public authority duty of candour, as per paragraph 14.1.5 of the Administrative Court Guide. This required the council ‘to make proper disclosure so that the decision-making process which led up to the adoption of a policy’ having the Catch-22 effects in question ‘can be examined by both the claimant and the court’. And, following Lord Walker in Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment [2004] UKPC 6: ‘It is now clear that proceedings for judicial review should not be conducted in the same manner as hard-fought commercial litigation.’

But while the council sought to avoid judicial review by purporting to make an exception to its policy by making a ‘final offer of accommodation which has been accepted’, the court rejected this, remarking that this ‘indicates a fundamental misunderstanding of the differences between private and public law litigation’ and it ‘cannot be right that public bodies can avoid legitimate examination of the lawfulness of their decision-making processes’ in such circumstances.

The housing allocation scheme, which was the focus of the court’s consideration of the council’s approach to it, stated (so far as material) that: ‘To enable the best use of the council and partner registered provider stock, properties will be allocated to those applicants who need that size and type of property. As such, preference for houses with two or more bedrooms will be allocated to families with dependent children… Properties with adaptations will be allocated to persons with a physical or sensory disability’.

The judge indicated that there was nothing in the allocation scheme explaining the level of weighting to be allocated to families with children compared with other applicants, ‘so as to give effect to the idea of a “head start” and the weighting to be applied to other factors, so that those other factors can outweigh the initial advantage of a family having one or more children’. For ‘in order to be transparent and to allow the policy to be operated with any degree of consistency by officers of the council, a policy which gave a “head start” to one particular group of applicants, namely those with children, also has to explain what other factors should be taken into account when the final decision is made’. So ‘the policy must explain how someone without a head start can prevail over someone who had a head start’.

In the circumstances Lock, unlocking Catch-22, upheld this element of the challenge and said he would make an appropriate order containing declarations that the council misunderstood the terms of its own allocation scheme and acted unlawfully in the implementation of the scheme. The case clearly has lessons for all council lawyers and particularly those advising housing departments.

Nicholas Dobson writes on local authority law and governance