M, the tenant of a third floor maisonette owned by local authority, suffered from asthma. She had three young children, the eldest of whom also suffered from asthma. M had applied for a transfer to new accommodation and to be approved as an emergency case within the urgent medical category of the LA’s housing allocation scheme, on the basis that the accommodation was affecting her health as she and her daughter had difficulty climbing the stairs. In her assessment of 8 August 2003, the LA’s Housing Medical Adviser concluded that the medical conditions of M and her children were not of such severity as to indicate the need for emergency transfer listing on the basis that when M’s asthma was bad she went to stay with friends in order to obtain help with child care and would still seek to do so if transferred; and that an important factor in gaining control of M’s asthma was the need to exercise, in relation to which the climbing of stairs was a positive aspect. M applied for a judicial review of that decision. At the hearing, the LA conceded that its allocation scheme was unlawful and proposed to operate a compliant scheme starting in February 2004. M argued that the assessment was unlawful because it was unreasonable, and that her allocation was unlawful as it did not comply with the reasonable preferences criteria of s167(2) Housing Act 1996, which requires allocation schemes to be framed so as to secure that reasonable preference is given to, amongst others, families with dependent children and households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds.
The Court concluded that Housing Medical Adviser had no basis for injecting the information that M went to stay with friends when she needed assistance with childcare into the assessment. Further, there was no basis for concluding that, because exercise was beneficial, the climbing of stairs was a positive aspect. The fact that M would often climb the stairs carrying a child and possibly also shopping, and the effect this might have on her condition, had been ignored. The assessment was Wednesbury unreasonable. The Court however declined to issue a mandatory injunction requiring the LA to assess M in accordance with the criteria of s167(2) of the 1996 Act, though the Court was prepared to grant a mandatory order for reassessment in relation to the urgent medical category group in which M had applied to be included under the LA’s housing allocation scheme, as anyone who qualified under that group would also qualify under s167(2).