02/09/2009

Boolen clarified

R (Van Boolen) v London Borough of Barking & Dagenham [2009] EWHC 2196 (Admin)

Last in our series of updates is Boolen v Barking & Dagenham. Again we only had a Lawtel note to go on in our previous report, which left us with some questions. Now we have received a transcript – alas not available on Bailii yet. This was a judicial review of Barking’s allocation scheme as it applied to ‘local connection’. Specifically, the challenge was that the operation of the scheme in relation to Ms Van Boolen were not in accordance with the published scheme, as required under s.167(8) Housing Act 1996.

Ms Van Boolen had a reasonable preference under s.167(2) in Barking’s scheme and had been an applicant on the scheme since 2006. She lived in Newham, but had cogent reasons including harassment for moving from Newham. This was a choice based letting scheme.

Due to her reasonable preference, Ms Van Boolen should have been at the head of the queue under the CBL, and indeed she was shown as such on her bidding history. She was of the highest priority on 78 occasions between March 2007 and December 2008 and more subsequently. However, she was never invited to view any of the properties she bid on. Instead, up until the end of 2008, she would receive a letter stating:

I refer to the above and the bid recently placed by you. Although your bid was successful it has not been possible to consider your interest due to the fact that you do not appear to have a local connection. If you would like to discuss your application or have any questions then please contact the Home Choice Assessment Team on the above number.

After 2008, the letters said something like:

On the facts available, you have not satisfied any of the criteria stated above. We have decided to consider the issue of local connection at this stage because of the number of customers who have local connection as well as a housing need. Also, we have 11295 applicants who are currently registered on our scheme. 5251 applicants are registered with a one bedroom need. We have limited resources compared to the number of customers who have registered with us for housing.

So it was clear that local connection was the decisive factor in Ms van Boolen’s failure to have her successful bid considered.

In evidence, Barking said that the way the scheme operated was:

(i) The property will generally be allocated to the applicant in the highest needs band who has been waiting the longest.
(ii) If that first placed applicant has no local connection, then s/he will still be invited to view the property and offered a tenancy of it unless the second placed applicant is in the same housing needs band and does have a local housing connection. In the latter instance, the first placed applicant will be ‘skipped’ and the invitation to view will be issued, and the property offered, to the second placed applicant.
(iii)If, however, the second placed applicant is in a lower needs band than the first placed applicant, then the first placed applicant will not be ‘skipped’ whether or not s/he has a local connection, but will be invited to view, and then offered, the property.

So local connection determined priority between those otherwise ranked of the same priority (apparently not including waiting time). But, as Barking admitted, this was not set out in the published allocation scheme. Indeed, the published scheme merely stated:

Local Connection – Consideration will be given to whether or not the applicant has a local connection with this Borough. This means, the Council will take account of whether the applicant is normally resident or employed within this Borough or the applicant has family connections or special circumstances that require them to live locally. If the Applicant does not have a local connection this may result in them receiving less priority than would otherwise be the case.

Barking went so far in evidence as to say the published scheme was to be amended to include the actual operation of the criterea. However, Barking insisted that this was not a blanket policy. There was a discretion that may be exercised in ‘special circumstances’ to over rule the local connection rule. This had never actually been exercised and the witness had trouble identifying situations in which it would be.

Barking, dubiously, submitted that as this had been a policy throughout the period of the Claimant’s bidding, her claim was out of time. The Court did not entertain that, noting it was still affecting the Claimant in February 2009, well within time.

The Claimant’s argument was firstly that:

section 167(8) means that one must look at the Scheme and not at any other guidance or policies. If looks only at the Scheme and assesses the claimant’s experience by reference to it a number of problems arise. The Scheme says that the absence of a local connection may reduce priority, whereas the claimant’s experience makes it clear that it will reduce priority. Thus a discretionary element of the Scheme is being treated as mandatory. That would not be applying the Scheme.

And secondly, if Barking argued that allocation was made by its policy, rather than the published scheme, it would also fall foul of s.167(8),as the policy was not published.

Held: It was clearly whether Barking was entitled to act on its policy that was at stake, given that it was not published as part of the scheme.

It is clear, first of all, that a housing allocation scheme may contain discretions and may do specifically in relation to the impact of local connection. If that point needs authority it is surely to be found in the statute itself. Section 167(2A) clearly permits a scheme to say, “This scheme allows the following factors to be taken into account” – which would be the incorporation of a discretion.

Where there is a discretion, a policy is sensible to ensure the equal exercise of the discretion. Contrary to the Claimant’s arguments, R v Isington London Borough Council ex parte Reilly and Mannix (1998) 31 HLR 651, and R (on the application of Lin) v Barnet London Borough Council [2007] EWCA (Civ) 132 do not establish that such a policy must be incorporated into the scheme itself to meet s.167(8).

R v (on the application of Faarah v Southwark London Borough Council [2008] EWCA (Civ) 807 in the Court of Appeal (our note here) established that a policy could not stand if it could not be reconciled with the published scheme, not that a policy on the exercise of a discretion was unlawful.

Held, by Mr CMG Ockleton (sitting as a deputy High Court Judge):

I have reached the clear conclusion in the present case that in the context of the defendant’s scheme the policy for the exercise of the discretion, in relation to loss of priority for lack of local connection, did not have to be set out in the Scheme itself. I reach that view for a number of reasons. First it does not relate to a central feature of the Scheme. Secondly, the policy’s possible existence is clearly heralded in the Scheme itself by the use of the word “may” in the relevant provision. Thirdly, a closely related point (on which I expand further below), there is nothing in the policy that runs counter to the Scheme as published. It is not an important qualification to something that appears to be absolute if the published scheme is read. Fourthly, it is an example of a matter which, if incorporated in the Scheme itself, would make the latter unwieldy. It is therefore in my judgment a matter that properly comes within the category of a level of detail, or degree of precision, into which the Scheme itself does not need to enter.

Nothing in the policy ran contrary to the published scheme. There was no blanket ban on those lacking local connection because:

A person without a local connection will be allocated the accommodation if he or she is the only bidder in the highest preference band from which bids are received. Further, a residual discretion is preserved by the policy, albeit Mr Adeyeni was not able to envisage circumstances in which it will be exercised.

Any argument that this was a de facto subdivision of the published bands into subdivisions that the applicant could not know about failed because:

the scheme itself makes it absolutely clear that these are factors which are taken into account after bidding has closed. Anybody to whom one of these factors applies, who reads the scheme, knows that: and therefore also knows that the information given during the bidding process will, to that extent, not be complete.

Further:

I do not think that it is remotely arguable that it is irrational for the defendant to treat those affected by loss of priority after the bidding has closed in a way that makes it less likely that they can make effective tactical bids. The defendant, with scarce housing resources, is entitled to take the view, as it clearly has done, that certain classes of bidder ought not to have all the advantages that those not in those classes have. Subject to the other provisions of Part 6, it is after all for the authority to decide how to allocate housing accommodation.

And finally, the Claimant had made no application under s.167(4A)(a)(i) for information as to how her application would be treated under the scheme.

Claim dismissed.

Although R v (on the application of Ahmad) v Newham London Borough Council [2009] UKHL 14 (our report here) changed the landscape on allocation challenges, this strikes me as an arguable decision. It is clear even from Barking’s evidence that this is less a policy than a criteria and the operation of that criteria was not set out in the published scheme. That appears to be a blanket prioritisation of one set of people over others who were otherwise in the same position on the published scheme and on the CBL lists, after bidding had closed and without its operation being clear. That does look like a departure from s.167(8), because on the published scheme, applicants had no way of adequately determining their chances of success, indeed were being told by the bidding system that they were at the top of the pile. Whether the ‘post bid’ factors were made adequately clear by the published scheme is, to say the least, debateable. I’m not sure that the ability of applicants to ask what theirs chances were under the scheme resolves the problem, particularly when the CBL scheme was telling them they had top priority.

Further, as Dave noted in our first note, R (on the application of Lin) v Barnet London Borough Council [2007] EWCA (Civ) 132 is clearly relevant. It is distinguished here in these terms:

In Lin, the policy purported to qualify what under the published scheme was an apparently unqualified entitlement. It is not surprising that the Court of Appeal thought that the provisions of the policy ought to have been in the scheme. However, this is a question of judgment on the individual circumstances[…]

But, given that the possible ‘discretion’ NOT to implement the policy had never been exercised and the Defendant could not imagine circumstances in which it would be, how far this is actually a judgment on individual circumstances also strikes me as arguable. But there we are. An application for permission to appeal was raised – any news on permission?

[Edit – no appeal. Barking amended their scheme. Robert Latham clarified this on our original post. Thanks for noticing, S]

Posted in: Uncategorized
Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. S

    I think Robert Latham said upon commenting in your original post that there would no appeal.

    I think you are right on your last point. I suspect, although I could be wrong, that the reason for distinguishing Lin was that a) Barking had since amended their scheme so as to include details of the discretionary policy, and b), it meant he didn’t have to hear submissions, or more importantly give judgment on such submissions, on relief.

    Once Barking had amended their allocation scheme what relief could he have given if the policy itself was lawful? None.

    Reply

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