27 May, 2010
Given the relative scarcity of social housing in the United Kingdom and the size of the waiting list for such accommodation, it is necessary for local housing authorities and housing associations to be able to prioritise those who are in the greatest need. This classification of applicants is normally related to factors such as if there are any children, the age of the applicant and their personal health. This last aspect was examined in the case of R (on the application of Bauer-Czarnomski) v Ealing London Borough Council  EWHC 130.
The applicant (B) had been living with his parents, who both suffered from mental health problems. It was said that caring for both of his parents had an adverse impact upon B's health. In 2004, B had applied to Ealing London Borough Council (E) for housing accommodation and to be placed under their allocation policy in a category which recognised his medical condition. B was placed in 'Band D' which was the lowest category. It was said that B wished to be placed in a higher bracket to reflect his health issues.
B obtained a medical report from his doctor in 2006. The doctor's report stated that the conditions under which B lived his life were having a major impact upon his health. It was said that B was in effect on 24-hour duty and was frequently disturbed during the night which meant he could not sleep properly. The fact that B was unsure that he could 'get away' from his parents also had an impact on his health.
Following this, E obtained a report from their own doctor. It is important to note that E's doctor did not see or communicate with B at any point. E's doctor advised that the report prepared by B's doctor did indicate that an adverse health effect arose from B living with his parents.
However, E's doctor continued to offer a recommendation in relation to B's application. E's doctor said that B's current accommodation with his parents was of an adequate size and facility to maintain independence and separation from other family members (through having his own bedroom). The advice given on this point was for priority to be offered to B on the basis of the absence of any particular necessity to move. An additional advice was also obtained from a psychiatric adviser who said that there were others who were in a more 'unpleasant situation' than B.
B applied for judicial review of E's decision (based upon these advices) to place him in band D.
The High Court ruled in favour of B and granted his application. The court stated that E's doctor's approach, to take into account only the physical conditions of B's house, was incorrect. Consequently, it was wrong for E to have relied upon their doctor's approach and that at the very least B ought to have been placed one category higher in band C.
The court also said that the primary problem was that E's doctor had gone beyond what he had been asked to do, as advising on which band B should be placed in was not a matter for him. Therefore, E should not have relied upon this advice when reaching its own decision.
It was held that E's decision was irrational and the decision to place B in band D was quashed by the court.
This case has shown how important it is for social housing providers to be able to show that they have adopted a fair and balanced approach to their decision making processes. It is also vital that they are able to show that any decision made is reasonable in the circumstances and is in line with any policy in existence on the issue.
A failure to do so can potentially lead to judicial review proceedings being started which can lead to considerable costs being incurred.