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.