The Court of Appeal dismissed an appeal by Helen Watters against the refusal by Mr Justice Dyson, on 23 May 1996, of her application for judicial review of a decision by Wolverhampton Metropolitan Borough Council on 28 March 1995, confirmed by its Housing Appeal Panel on 14 March 1996, not to admit Mrs Watters to the council's housing waiting list, with the result that she was not eligible to be selected as a council tenant.
Terence Gallivan (Roskell, Davies & Co, Birmingham) for the applicant; James Findlay (Wolverhampton MBC) for the council.
Lord Justice Leggatt said Mrs Watters and her husband had five daughters aged from 8 to 14, the eldest of whom had lately given birth to a child herself. In September 1992 they were evicted from a council tenancy for rent arrears amounting to over pounds 2,300. They were currently living in a private sector tenancy at 7 Lambeth Walk. The contractual rent was pounds 80 per week, while the eligible rent for housing benefit was pounds 70 per week. The premises consisted of a semi-detached house with three bedrooms. There was statutory overcrowding.
At the beginning of 1995 Mrs Watters's application to be admitted to the council's housing list was rejected because more than two weeks' rent arrears remained outstanding from previous council tenancies. Her appeal was dismissed by the appeals panel.
Judicial review of those decisions was sought on the ground that, by failing to place Mrs Watters and her family on the housing waiting list, the council was in breach of section 22 of the Housing Act 1985, which provided:
A local housing authority shall secure that in the selection of their tenants a reasonable preference is given to (a) persons occupying insanitary of overcrowded houses, (b) persons having large families, (c) persons living under unsatisfactory housing conditions, and (d) . . . [homeless persons].
It was common ground that Mrs Watters with her family were within paragraphs (a) to (c) of that section. But the council operated a policy under which tenants owing more than two weeks' rent arrears would not be eligible for council housing unless (a) they had a social or medical need award of 60 points in one single category, (b) they had made substantial efforts to reduce the arrears, or (c) there were other exceptional circumstances.
It was argued that the council's policy was unlawful and in breach of section 22 because, although the applicant fell within three of the statutorily preferred groups, she had in fact been afforded no preference whatsoever. Because Parliament had ordered that "a reasonable preference" was to be given, a council could not treat it as reasonable not to grant any preference. While the existence of rent arrears was relevant, they did not conclude the matter against the applicant, because she could not be denied any preference whatsoever.
His Lordship disagreed. If section 22 simply required "preference" to be given, that argument would be correct. But it did not: it required "reasonable preference". That envisaged that other factors might weigh against and so diminish and even nullify the preference.
If Sedley J, when saying in R v Lambeth LBC, ex p Njomo (1996) 28 HLR 737 at 742 that a council "must not . . . eclipse or distort the priority which section 22 accords", meant that the statutory preference could not be outweighed by other relevant considerations, he was wrong.
No preference was to be given but reasonable preference. That involved balancing against the statutory factors such other factors as might properly be weighed against them. So the council was entitled to take account of substantial arrears of rent due to the council.
Paul Magrath, Barrister