In R (Boolen) v Barking and Dagenham LBC reported on Lawtel, the Claimant applied for judicial review of the the council’s allocation scheme on the basis that
(1) the council had implemented a “local connection” criterion into its prioritisation decisions after bidding had ended, but that local connection criterion was not set out in the policy though “it was averred to”. It was argued that the lack of publicity given to that criterion and its consequential unavailability to the public meant that the policy was unlawful. Indeed, on the facts, it appears that the Claimant only found out about the criterion after she had been top bidder for properties and been refused “as the years progressed”. Readers will remember that this was the one point of success for Ms Lin in R(Lin) v Barnet LBC [2007] EWCA Civ 132 in which the CA held (at [48]) that, where a criterion was “central to the operation of a scheme”, it was required to be included in that scheme.
and (2) that the operation of the local connection criterion effectively imposed a blanket ban on households who did not have that connection.
In an unreported extempore judgment, CMG Ockleton (sitting as a Deputy Judge) refused the application for judicial review. As regards the first point, the Deputy Judge found that “the exercise of the discretionary element of the policy did not have to be published and set out in the policy itself. it bore no relation to the central issue of prioritisation and was clearly averred to in the policy itself. Moreover it was not an important qualification and would, if incorporated into the policy document, have made the policy unwieldy”. I have set that out from what appears on Lawtel partly because that seems counterintuitive (and, perhaps, if Robert Latham or Jonathan Manning [counsel for the Claimant and Defendant respectively] are reading this, they will let us know what “averred to” in the policy actually means and whether, in Robert Latham’s case, he will seek to appeal). On the second point, which I think was probably a difficult argument to run in light of Ahmad (links to our note), the Deputy Judge found that this was a question of degree and all applications were reviewed on their merits and properties allocated by reference to prioritisation which was the overriding consideration.
The scheme itself was not challenged and the actual practice applied by B&D was accepted by C to be lawful. I think, therefore, that the judge meant that there was no need to publish the policy in the scheme, as that would just be asserting formally what was in fact applied, i.e. averring what was already in place.
This was a judgment which was read-out at great speed. The Lawtel report reflects this. The Barking policy provided that the authority “may” reduce priority at the bidding stage if the successful applicant did not have a local connection with the borough. Over a period of some two years, the claimant was the successful bidder for 88 properties. On each occasion, her priority was reduced because of her lack of local connection. It became apparent that the authority had criteria whereby priority would be reduced on grounds of lack of local connection by putting the applicant at the bottom of their relevant band unless there were exceptional circumstances. The authority conceded that this discretion had never been exercised.
Mr Ockleton held that Barking were not obliged to include the criteria in their published allocation scheme. Neither had Barking unlawfully fettered their discretion in manner in which they had exercised their discretion.
Barking have now amended their policy to include the criteria as part of their published scheme. Ms Van Boolen will not be appealing.
The case illustrates the lack of transparency in the manner in which Barking allocate accommodation. The claimant’s application had been assessed. She had been notified that she had been allocated to Band 3 with her relevant priority date. Her on-line bidding account consistently recorded her to be the successful bidder. She was only aware that her priority had been reduced after the accommodation had been allocated to another applicant. Under CBL, applicants may think that they know their bidding currency. In reality, it may be dud.
Thank you for that clarification, Robert, and, as for CBL being based on transparency, I guess that’s plus ca change. I’ve heard it said that CBL schemes will lead to more challenges like this because of the feedback requirements and spreading the net when there are common allocations schemes, but this case suggests it will be an uphill battle to get permission. Perhaps there’s a case for the various sector ombudsmen becoming more involved.