Unpublished guidance and housing allocation schemes

A recent bid for judicial review concerned the inconsistency between a council's unpublished guidance and its housing allocations scheme. Jeremy Ogilvie-Harris analyses the outcome.

A London council has settled a judicial review brought by an applicant under Part 6 of the Housing Act 1996 who was removed from the housing register in reliance on unpublished guidance which was inconsistent with the Allocations Scheme.

The claimant had been considered overcrowded under Hackney Council’s 2016 Allocations Scheme because his son and daughter, who were over the age of 10, had to share a bedroom.

However, the claimant’s household did not meet the definition of overcrowding under Hackney Council’s 2021 Allocations Policy with effect from 1 October 2021, which requires households to be overcrowded by two bedrooms to qualify.

Hackney Council had provided in the 2021 Allocations Policy for transitional protection, under which, in certain circumstances, a household could remain on the housing register under a Transitional Band.

The claimant had been included on the housing register under the Transitional Band.

In January 2024, the claimant was removed from the housing register on the basis of Hackney Council’s “Guidance for Transitional Band as of 01 October 2021”, which stated that transitional protection only lasted for two years, until 30 September 2023.

The 2021 Allocations Scheme does not expressly include any temporal limitation on the existence of the Transitional Band.

The claimant brought a judicial review claim arguing, among other things:

• Hackney Council erred in law by applying unpublished guidance which is inconsistent with its Allocations Scheme in breach of section 166A of the 1996 Act and Lumba v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 A.C. 245 at §26.
• The guidance was unlawful as it sanctions, positively approves or encourages unlawful conduct by those to whom it is directed i.e. departure from the Allocations Scheme, applying (A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 W.L.R. 3931 at §38.

Following the claim being issued, Hackney Council settled the claim, agreeing to reinstate the claimant to the housing register under the Transitional Band and restore his effective bidding date.

Jeremy Ogilvie-Harris is a barrister at Cornerstone Barristers. He acted for the Claimant, instructed by Thul Khan of UCL Legal Advice Clinic.