The case involved an appeal of a judicial review decision against Southwark’s allocation policy. The issue was whether the local authority had acted outside its obligation to allocate accommodation according to its housing allocation policy, pursuant to section 167(8) Housing Act 1996.

The facts are as follows: the claimant, her sister and seven children lived in a three bedroom, third floor flat provided by the local housing authority. The claimant had a chronic back condition that restricted her mobility. She applied for a transfer and on 1 July 2003 was awarded 20 medical points and 25 for overcrowding under the allocation scheme then in force. The local authority changed its allocation scheme on 19 September 2005 to a new “choicebased letting” scheme. There were four bands with priority from one to four, with band one being the highest priority.

The new scheme stated that applicants who qualified to be registered in band three on more than one ground, such as overcrowding and medical priority, would be registered in band two. The claimant was initially given band three in August 2006 and was informed by the local authority that, although she had 20 medical points under the old scheme, did not have medical priority under the new scheme and so did not qualify for band two. The claimant issued judicial review proceedings to quash the local authority’s decision. The local authority admitted that it operated an unpublished policy of putting applicants with less than 30 medical points under the old scheme into band three.

The judge held that there was no difference in the wording defining the requirements for 20 points under the old scheme and band three under the new scheme. The local authority was not entitled to treat people differently when the criteria were the same. He concluded that the local authority had acted unlawfully. Southwark appealed on the basis that the judge had been wrong to treat the criteria of 20 medical points under the old scheme and inclusion in band three under the new scheme as indistinguishable.

The Court of Appeal upheld the decision stating that the judge had been correct to treat the criteria under the old and new scheme as identical. Under section 167(8) Housing Act 1996, it was unlawful for an authority to allocate accommodation except in accordance with its allocation scheme. It had adopted unpublished administrative practice incorporating criteria for medial priority that did not accord with its published allocation scheme. This practice was in breach of its obligations under section 167(8) Housing Act 1996.