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By SJM
09/04/2012

Auto-bids and Lettings Choice

The Administrative Court has recently given judgement in the conjoined applications of Rouse Tout a Tout  and Heff v LB Haringey, which concern the lawfulness of the auto-bid system operated by LB Haringey in the allocation of their permanent accommodation.

Both Claimants were accepted as homeless several years ago and were waiting in temporary accommodation for an offer of permanent accommodation. Both Claimants were successful “auto-bidders” for properties under the scheme and although they expressed dissatisfaction with the offered properties, only Ms Rouse Tout a Tout took up the new tenancy while Ms Heff remained in her temporary let.

The common ground of challenge was that the local authority had departed unlawfully from paras 3.13 and 3.16 and 4.50-4.56 of the Part VI Code of Guidance. These provisions discourage local authorities from imposing sanctions on applicants who have bid for properties that are unsuitable for them. They also recommend appropriate limits on the periods during which those in temporary accommodation should have the ability to bid.

The Court rejected the argument that to discharge a duty following a final offer ought to be treated as a sanction: paras 3.13 and 3.16 were not intended to apply to those in temporary accommodation and paras 4.50 et seq were the operative paragraphs. In response to the argument that the time period of 2 months for active bids was unrealistically short and that there was no proper way to monitor an applicant’s failure to bid, the Court observed in this case that about 30 properties were available for letting in this period, which could not be described as an inadequate choice. Secondly, the applicants had the benefit of a home visit, which was intended to explain the bidding process and how they could overcome any difficulties with it. The Court held that there was compliance with the Code but even if there had not been, the Court remarked that a departure from the Code might still not be irrational given that local authorities were required only to have due regard to it.

The Court nevertheless expressed sympathy for Ms Heff’s situation as there was a further property available at the same time as her auto-bid that she was prepared to accept.  When the auto-bid for property B went through, the offer of property A was withdrawn, to Ms Heff’s disappointment. The Court rejected the claim that she had a legitimate expectation of property A or that the offer of property B was unfair or ultra vires. It pointed out that the offer of property A by London and Quadrant was expressed to be conditional on Haringey giving the “all-clear”. This never happened and the offer of property B was made instead.

Both applications were dismissed but the judge did encourage the local authority to consider giving Ms Heff the second chance of a successful bid, given her unusual circumstances.

Comment: I am interested to hear that Haringey go to the trouble of carrying out a home visit and of sending out a DVD instruction manual as I do not know of many authorities who go this far with their Part VI applicants. Where direct offers are concerned, the most a lot of applicants can expect is a letter saying “here is a property we believe would be suitable for your needs.” Whether this is to be treated as having due regard to para 4.56 of the Code is an open question.

I note that no reference is made in the judgement to the suitability of the accommodation and it would also be useful to know whether any review/appeal in these cases is ongoing.

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.

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