Kharazmi v London Borough of Lambeth [2002] EWHC 132 (Admin) (11th February, 2002)

Neutral Citation Number: [2002] EWHC 132 (Admin) Case No: CO/4882/2001 IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL 11 February 2002 B e f o r e : THE HONOURABLE MR JUSTICE KEITH ____________________ SOHAILA KHARAZMI Claimant - and - LONDON BOROUGH OF LAMBETH Defendant ____________________ (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ Stephen Cragg (instructed by Jacqueline Everett & Co.) for the Claimant Charles Béar (instructed by Sternberg, Reed, Taylor and Gill) for the Defendant ____________________ HTML VERSION OF JUDGMENT AS APPROVED BY THE COURT ____________________ Crown Copyright © Mr Justice KEITH The Claimant is 35 years old. She had polio in childhood. Her mobility is restricted and she suffers considerable discomfort if she has to stand for long periods or has to walk any distance at all. She currently lives in a one-bedroom flat with her husband and 2 year old child. The flat is privately rented and is on the 5th floor. She claims that the lift “frequently” breaks down, though against that it is said that the lift “sometimes” breaks down, and that it is invariably repaired within a day. In September 1998, the Claimant applied to the Defendant for inclusion on its housing allocation list. She was not included in any priority category, and the indications are that it will be many years before she can be re-housed. Since then, the Claimant has requested a community care assessment of her needs, those needs have been the subject of reports, but the Defendant has still declined to provide her with residential accommodation. The Claimant now applies for permission to apply for judicial review of the Defendant’s decision not to provide her with residential accommodation. The Defendant is said to be in breach of the duties imposed on it by section 21 of the National Assistance Act 1948. The nature and extent of these duties have been considered in a number of recent cases: by Scott Baker J. in R. v . Bristol City Council ex p. Penfold (1998) 1 CCLR 315, by Henriques J. in R . (on the application of Bantutu) v. London Borough of Islington (2001) 4 CCLR 445 and by Stanley Burnton J. in R. (on the application of Wahid) v. London Borough of Tower Hamlets (2001) 4 CCLR 455. In the last case, Stanley Burnton J. said that even with counsel’s considerable assistance he had found the case a difficult one. He was referring to the proper construction of section 21 and how it should be applied in practice. His judgment is the subject of an appeal, which is due to be heard by the Court of Appeal very shortly. In the normal course of events, I would have either decided the arguability of the Claimant’s contention now, leaving it to the Claimant to renew her application to the Court of Appeal if I declined to grant her permission to apply for judicial review and if the Wahid appeal was decided in a way which was favourable to her, or I might have adjourned further consideration of this application for permission to apply for judicial review until after the Court of Appeal had handed down its judgment. However, for the reasons which will become apparent in a moment, I do not propose to take either of those courses. That is because the Claimant also applies for permission to apply for judicial review of the Defendant’s decision not to include her in any priority category for housing allocation. No direct challenge is made to that decision, maybe because the decision was made so long ago. The challenge is a collateral one, but not necessarily any the less compelling for that. The argument is this. Section 167 of the Housing Act 1996 requires local housing authorities to devise a scheme for determining priorities in the allocation of accommodation and to establish a set of procedures to be followed to enable the determination of those priorities to be assessed. Such a scheme has to be framed so that preference is given to households which include someone with a particular need for settled accommodation on medical grounds who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future. It is at the very least arguable that the phrase “settled accommodation” in this context means settled accommodation which is suitable for the medical needs of the individual concerned. Although the Claimant is said to come within this category, she has not been given such a preference in the allocation of accommodation. The case advanced on her behalf is that the only mechanism in the scheme for the Claimant to be given the preference to which she is entitled is if her particular circumstances are referred to the Defendant’s housing department (in its capacity as the local housing authority) by the Defendant’s social services department. The Defendant’s social services department has not done that. The scheme devised by the Defendant has recently been held to be unlawful in some respects, though I do not know in what respects. But leaving aside the question whether the scheme is unlawful on the footing that the procedures to be followed were not such as would enable a proper determination of the priorities to be made, the Claimant contends that the failure of the Defendant’s social services department to activate the mechanism for the Claimant to be given the preference to which she is entitled is both unlawful as being contrary to section 168(2) or irrational given their assessment of her needs. In my judgment, these contentions cross the threshhold of arguability, and are sufficiently important to justify the grant of permission to apply for judicial review. Since I grant permission on this aspect of the case (i.e. the priority housing argument), I do not think that I should deny the Claimant permission on the other aspect of the case (i.e. the 1948 Act point), though it may be that the 1948 Act point will no longer be contentious once judgment in the Wahid appeal is handed down. Finally, it is said that the claim form was filed later than three months after the grounds to make the claim first arose. The Claimant denies that on the basis that the breaches complained of are continuing breaches, but whatever the rights and wrongs of that contention may be, I grant the Claimant an extension of time to file the claim form to 30 November 2001 (when it was actually filed) since the Claimant was exploring the resolution of the problems over her housing through correspondence and seeking to utilise alternative remedies (including a statutory complaints procedure) in an attempt to avoid expensive litigation. This is not an appropriate case for expedition. ************************ MR JUSTICE KEITH: For the reasons given in the judgment handed down today, I grant the claimant permission to apply for judicial review, but I direct that this is not an appropriate case for an expedited hearing of the substantive application. © 2002 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII