In his comically surreal struggle novel, Joseph Heller defined the paradox of Catch-22: ‘A priority for one’s security within the face of risks that had been actual and quick was the method of a rational thoughts.’ For when you flew extra missions you had been loopy and didn’t must. However when you didn’t wish to you had been sane and needed to. In different phrases, a no-win state of affairs.

Nicholas Dobson

This was sadly the place confronted by Mrs Habibo Nur (Mrs Nur), a Birmingham Metropolis Council housing applicant with three grownup daughters together with one, Zakiya, who has studying difficulties and suffers from cerebral palsy. Zakiya consequently requires help with each day residing actions and has been assessed as needing a stage entry bathe, entry to stairs with bilateral handrails and lodging with a downstairs bathroom.

Nonetheless, as David Lock QC, sitting as a deputy Excessive Court docket Decide defined on

19 December 2020 in R (Nur) and one other v Birmingham Metropolis Council [2020] EWHC 3526 (Admin), Mrs Nur’s Catch-22 was that: ‘She was solely entitled to bid for properties which met her daughter’s incapacity wants however, each time she did so, she discovered that her bid was “skipped” as a result of the property was a home and council officers thought-about that they had been obliged to provide precedence to a household with kids underneath the age of 18 instead of a household who had a severely disabled daughter who wanted fixed care however was over the age of 18.’

Within the circumstances, solicitors for Mrs. Nur introduced judicial assessment proceedings difficult the lawfulness of the council’s housing allocation scheme in respect of its discriminatory results underneath the Equality Act 2010, and since the council had acted unlawfully in misunderstanding the impact of its personal coverage. Nonetheless, due to many irregularities within the council’s dealing with of the case, the courtroom declined then to proceed with the discrimination components. These would, pursuant to instructions, be introduced again earlier than the courtroom ‘on the earliest practicable alternative’. The courtroom did however cope with the latter concern in regards to the council’s substantively illegal strategy to its housing allocation scheme.

Lock was excoriating on the council’s strategy. He mentioned: ‘Sadly, this case is an object lesson in how a public physique shouldn’t reply to public legislation proceedings.’ For, amongst different issues: ‘The council have failed correctly to interact within the proceedings, seem to have misunderstood the character of public legislation proceedings and, when it lastly began to interact with the problems at a really late date, fully misunderstood the duties on it as a public physique.’ And whereas the courtroom recognised the present ‘appreciable stresses on anybody working in native authorities’, which name for ‘an applicable diploma of latitude to any public physique within the current circumstances’, however, ‘the strategy taken by the council on this case [had been] far outdoors any respectable space of flexibility’.

The council’s ‘collection of lamentable failures within the conduct of this litigation’ included failure all through of its public authority obligation of candour, as per paragraph 14.1.5 of the Administrative Court docket Information. This required the council ‘to make correct disclosure in order that the decision-making course of which led as much as the adoption of a coverage’ having the Catch-22 results in query ‘will be examined by each the claimant and the courtroom’. And, following Lord Walker in Belize Alliance of Conservation Non-Governmental Organisations v The Division of the Surroundings [2004] UKPC 6: ‘It’s now clear that proceedings for judicial assessment shouldn’t be carried out in the identical method as hard-fought industrial litigation.’

However whereas the council sought to keep away from judicial assessment by purporting to make an exception to its coverage by making a ‘remaining supply of lodging which has been accepted’, the courtroom rejected this, remarking that this ‘signifies a elementary misunderstanding of the variations between non-public and public legislation litigation’ and it ‘can’t be proper that public our bodies can keep away from respectable examination of the lawfulness of their decision-making processes’ in such circumstances.

The housing allocation scheme, which was the main target of the courtroom’s consideration of the council’s strategy to it, said (as far as materials) that: ‘To allow the perfect use of the council and accomplice registered supplier inventory, properties can be allotted to these candidates who want that dimension and kind of property. As such, choice for homes with two or extra bedrooms can be allotted to households with dependent kids… Properties with diversifications can be allotted to individuals with a bodily or sensory incapacity’.

The choose indicated that there was nothing within the allocation scheme explaining the extent of weighting to be allotted to households with kids in contrast with different candidates, ‘in order to provide impact to the thought of a “head begin” and the weighting to be utilized to different components, in order that these different components can outweigh the preliminary benefit of a household having a number of kids’. For ‘so as to be clear and to permit the coverage to be operated with any diploma of consistency by officers of the council, a coverage which gave a “head begin” to at least one specific group of candidates, specifically these with kids, additionally has to elucidate what different components must be taken under consideration when the ultimate resolution is made’. So ‘the coverage should clarify how somebody and not using a head begin can prevail over somebody who had a head begin’.

Within the circumstances Lock, unlocking Catch-22, upheld this component of the problem and mentioned he would make an applicable order containing declarations that the council misunderstood the phrases of its personal allocation scheme and acted unlawfully within the implementation of the scheme. The case clearly has classes for all council legal professionals and notably these advising housing departments.

Nicholas Dobson writes on native authority legislation and governance