R v Islington London Borough Council, ex parte Aldabbagh

Queen's Bench Division; Harrison J

October 11 1994

Tenant requesting transfer of accommodation on medical grounds'— Council suspending application because of rent arrears — Decision taken in accordance with council policy — Whether policy unlawful fetter on council's duties under the housing legislation — Application for judicial review granted

A tenant of a council flat at 106 Godfrey Mouse, Bath Street, London ECI, who had lived there since the mid-1970s, applied for transfer to other premises on medical grounds, but the application was "held in abeyance" pending rent arrears. In March 1990 the applicant was awarded a medical category A transfer status. In May 1992, a reply to an inquiry about transfer stated that it would not be given "active consider­ation because of rent arrears. In December 1993, she was again told that she was not being considered for a transfer;¹ that her rent arrears would have to be reduced to under £100 for a reconsideration. The applicant commenced the judicial review proceedings, arguing, inter alia, that, in the discharge of their duty under section 65(2) of the Housing Act 1985. the fact that a tenant might have rent arrears was not a factor that a housing authority could take into account so as to justify suspension of a transfer: see R v London Borough of Tower Hamlets, ex parte Khalique (unreported, March 10 1994). It was submitted that those same principles applied where the tenant was seeking transfer on medical grounds. Such a poli­cy, it was argued, was an unlawful fetter on the council's duties and discretions under Part HI of the 1985 Act.

The council argued that there was nothing in law which prevented their policy of processing transfer applications which took into account, inter alia, rent arrears. Further, such a policy fell within their general powers of management under section 21 of the 1985 Act. Medical grounds were irrel­evant to the question whether,'as a matter of principle, they were entitled to take into account the fact and existence of rent arrears. The council also argued that their policy should be read in the light of the fact that they also required each case to be considered on its merits.

Held Order for Judicial review; council's decision to be quashed; no order for mandamus to order transfer.

1.Under guidelines, attached to an instruction note on council rehousing policy, transfer was to be "highly unlikely" where there were rent arrears and the tenant failed to enter into a reasonable agreement towards pay­ing the arrears or failed to abide by that agreement. However, an additional guideline stated that a transfer application "should only be agreed" where there was an agreement to pay current rent and contribution towards the rent arrears,

2.The first part of the additional guideline was unlaw­ ful because it was in the form of a rule which allowed no exception and thereby fettered discretion.

3.The fact that the merits and circumstances of each case were to be taken into account under the second part of the additional guideline did not assist because an ppli­
cant would have already been excluded under the first part.

4.While there could theoretically be an overlap between the statutory duty to transfer under section 21 and the statutory duty to provide accommodation for homeless persons under section 65, those sections involved quite different considerations. The council's policy was intended to deal with transfer cases and the council, in the court's judgment, could take into account arrears of rent when considering such applications pursuant to their sec­ tion 21 powers.

5.However, in the present case, the evidence showed that the council's decision was taken solely on (he basis of rent arrears and failed to give weight to a material consid­ eration, viz the medical grounds for rehousing.

Miles Croally (instructed by Michael Reason & Co) appeared for the tenant; Christopher Baker (instructed by the solicitor to Islington London Borough Council) appeared for the hous­ing authority.