R (on the application of Boolen) v Barking and Dagenham London Borough Council

  1.       THE DEPUTY JUDGE:  This claim for judicial review concerns the Housing Allocation Scheme run by the London Borough of Barking and Dagenham (“the defendant”).  In particular it concerns the Borough’s attitude to applications for housing for people living outside the borough with no local connection to it.  Permission was granted in part by Geraldine Andrews QC, sitting as a Deputy Judge of this court, and partly on oral renewal by Hickinbottom J.  The statutory framework 2.       The allocation of housing by a local authority, such as the defendant, is governed primarily by Part 6 of the Housing Act 1996.  Every local housing authority is by section 167 required to have an allocation scheme for determining priorities and as to the procedure to be followed in allocating housing.  That means all aspects of the allocation process.  The scheme has to be available to the public, as section 168 provides, and section 167(8) provides that:   “A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme.”  3.       The defendant borough has an allocation scheme (“the Scheme”), and the legality of the Scheme itself is not challenged in these proceedings.  The challenge is to individual allocations.  On behalf of the claimant, Mr Latham submits that allocations that have not been to her have been allocations which were, in the circumstances, not in accordance with the Scheme.  There are some further provisions of the Housing Act 1996 that I must read out.  First, section 167(2) provides that: “[an allocation] scheme shall be framed so as to secure that reasonable preference is given to-  [five specified categories of people]”  One of those categories is: “(d) people who need to move on medical or welfare grounds (including grounds relating to a disability)”     Subsection (2A) goes on to provide that:    “The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (2); and the factors which the scheme may allow to be taken into account include –  “(a) the financial resources available to a person to meet his housing costs;   (b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant; (c) any local connection (within the meaning of section 199) which exists between a person and the authority’s district.” 4.       Subsections (2B) and (2C) provide exceptions in the case of bad behaviour and are of no relevance to this case.  Subsection (4A) reads, so far as relevant, as follows:  (4A) The scheme shall be framed so as to secure that an applicant for an allocation of housing accommodation— (a) has the right to request such general information as will enable him to assess— (i) how his application is likely to be treated under the scheme (including in particular whether he is likely to be regarded as a member of a group of people who are to be given preference by virtue of subsection (2)); and (ii) whether housing accommodation appropriate to his needs is likely to be made available to him and, if so, how long it is likely to be before such accommodation becomes available for allocation to him; …    (c) has the right to request the authority to inform him of any decision about the facts of his case which is likely to be, or has been, taken into account in considering whether to allocate housing accommodation to him;” 5.       Section 169 requires local housing authorities to have regard to guidance given by the Secretary of State.  For completeness I will read section 199(1), which is in Part 7 of the Act which relates to homelessness, but which because of the terms of section 167(2A)(c) forms the definition of local connection for the purposes of that section.  Section 199(1): “A person has a local connection with the district of a local housing authority if he has a connection with it- (a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice, (b) because he is employed there, (c) because of family associations, or (d) because of special circumstances.” The Scheme 6.                  The defendant’s allocation scheme was introduced on 12 April 2005.  It is a choice-based allocation scheme.  It aims to allow prospective tenants to have a choice about where they will live.  Available accommodation is grouped according to its size, and after applicants have registered they are told the size of accommodation for which they will be considered.  Applicants are also allocated to one of four bands according to their assessed needs.  A person who has a reason falling within section 167(2) is accorded “Reasonable preference”, for that is the phrase used in the statute.  A person falling into more than one of those categories is allocated to the higher priority “Cumulative Reasonable Preference”.  Those with particular specified urgent needs are accorded higher priority still called “Additional Preference”.  The fourth band is the one at the bottom, “No Reasonable Preference”.   7.  Prospective tenants signify interest in accommodation by bidding.  There is a new list of available accommodation each week and each registered applicant may bid for one property each week.  Bidding is on line.  The allocation amongst those who bid is declared by the Scheme to be as follows:    “We will assess whether or not an applicant falls into one or more reasonable preference categories and whether or not his/her circumstances are so severe that he/she should be awarded additional preference.  Within these categories the length of time an applicant has been waiting will be the deciding factor in determining who is re-housed.” 8.       Because the bidding is on line, and because the system is responsive, bidders can see how they are doing.  If a property being bid for turns out to be in great demand, or if there is a bid from a person in a higher preference category, bidders can see that they are not at the front of the queue.  If they want to, they can withdraw that bid and bid instead for another property. 9.       As bidding closes they will be able to see how near they are to the front of the queue for that property.  Because of the provision of the Scheme that I have just cited the longer people have been waiting for housing allocation the nearer they will be to the front of the queue, provided that there is not a bid from a person in a higher preference category. 10.     After bidding has finished up to three applicants are short listed and invited to visit the property.  At this point, and not before, comes into play a part of the policy headed “Reasons and justifications to disallow certain bids”.  In the published Scheme that appears as follows: “Our allocations scheme attempts to reconcile waiting time and housing need.  These are the overriding factors, which we are required to consider in determining priority.  We can however take other factors into account to determine the priority of applicants and award less priority than would otherwise be the case.  We will not apply a blanket policy, we will give due consideration on a case-by-case basis.  Applicants who bid will not be invited to view even if they emerge first in the bidding process if any of the following applies:”       Then there are a number of headings:  Finances, Behaviour, and then: “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.”   There are two further categories after that. 11.     Section 169 of the 1996 Act requires local housing authorities to have regard to guidance given by the Secretary of State.  A Code of Guidance was issued in November 2002 and supplemented in August 2008.  The 2002 scheme has a section determining priorities.  It expounds section 167(2A) and then adds at paragraph 5.24: “There should be arrangements for determining allocation priorities between two households with similar levels of need.  It would be legitimate to employ some indicator that reflects the time spent waiting at a particular level of need.  Waiting time would normally run from the date of the original application to the housing authority in the case of new applicants and in the case of transfer applicants from the time they applied to the housing authority to be transferred.  Whatever indicators are used they should be set out clearly in the allocation scheme.” 12.     The 2008 supplement has a section entitled “Local Connection” paragraph 4.44:      “Section 167(2A) provides that authorities may frame their allocation scheme to take into account certain factors, including local connection, for the purposes of determining relative priorities between applicants in the reasonable or additional preference categories.  Where they do this, authorities should bear in mind that this is likely to result in greater complexity within their banding scheming.  4.45 However, for some authorities, local connection may be a policy priority.  While there is nothing to prevent authorities framing their allocation scheme to include local policy priorities such as this, they must ensure that these do not dominate the scheme and that overall the scheme operates to give reasonable preference to people in the reasonable preference categories.” The Claimant 13.     Mrs Van Boolen lives in Newham.  She has a number of medical problems and has been the subject of harassment by a gang of local youths so she wants to move.  She says hers is an urgent need.  She hopes to be able to live in the Borough of Barking and Dagenham, the defendant’s borough.  She used to work there and there are people that she knows there.  She applied to the defendant for housing as long ago as 8 February 2005. 14.     On 26 October 2006, following the implementation of the current Scheme, the borough notified her that she had been awarded reasonable preference with an effective application date of 19 May 2006.  That means that she is to be regarded as having been on the Barking and Dagenham waiting list since then.  The reasonable preference is a recognition of her housing needs in accordance with the statutory provisions and the Scheme.  She has been bidding for properties since at least 2007.  Because she has a reasonable preference banding, and because she has now been on the waiting list for so long, she can expect to be near the head of the queue for each property on which she bids, and so she is. 15.     Between March 2007 and December 2008 she was first in the queue 78 times, and there have been many more similar occasions since, but she has never been asked to attend a viewing.  The defendant’s approach to “local connection” 16.     The reason for that is her lack of a local connection.  She concedes that she has no local connection within the meaning of section 199.  Up to the end of 2008, after the close of bidding, she used to get a letter reading as follows, after a heading with the name of the property for which she had bid: “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.”  17.     On 20 October 2008, the defendant wrote to the claimant’s solicitors a letter setting out certain further details in response to enquiries raised by them.  The important part reads as follows: “We have reviewed the decision-making process on every one of the properties on which your client has had a bid skipped.  In each case, the successful applicant has been someone with one reasonable preference award on their application and in each case they have had a local connection established on their application.  In each case, your client’s bid has been considered and her preference reduced in favour of a case with the same preference but which has had a local connection. The primary consideration when determining allocation is need.  There are a small number of cases which have more than one reasonable preference.  Were your client among this number then her need would place her ahead of cases with only one reasonable preference who had established a local connection.  Unfortunately, she is not.  I would advise that we currently have 5,314 cases registered in the one bedroom category.  The vast majority of these cases will have established a local connection and many will have one reasonable preference award.  It would clearly be unfair to those applicants who have both an award of one reasonable preference and local connection to overlook their needs in favour of an applicant who does not have both factors in place on their application.” 18.     Since the beginning of 2009 the letters the claimant receives, after her successful bids, have been fuller.  I will read out parts of the first of them, dated 15 January 2009:  “We can confirm that 70 customers placed bids for this property, 29 of these customers have the same housing needs as you ie one Reasonable Preference.  You are 1 of 2 customers among the 29 customers with one Reasonable preference that has no local connection with this Authority.” The letter goes on to summarise sections 167(2A) and 199 of the Act.  It continues: “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.  If your circumstances change and you satisfy any of the criteria for local connection, please inform us.” 19.     So those letters make it clear that the reason why the claimant has not been successful in obtaining an allocation, despite her place at the front of the queue, is her lack of local connection.  There is a witness statement from Solomon Adeyeni on behalf of the defendant.  After setting out the principles of the scheme, and the bidding process, he continues as follows: “The policy on local connection is designed to ensure that account is taken of an applicant’s connection, or lack of connection, with the borough as part of the process of deciding the priority of those applicants who have bid for a particular property.  20.     Accordingly, after the bids have been ranked in the order of housing needs and effective date, but before shortlisting applicants to view the property in question, the lettings officer will review the applicants’ applications to check (amongst other things) whether they have a local connection.  Thus the system generally works in the following way (as explained in general terms in the letter of October 20, 2008). (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.” 21.     Thus local connection is not a consideration which ‘outranks’ housing need, in the sense of allowing an applicant in a lower needs band to acquire priority over an applicant in a higher needs band;  it is only used to determine priorities between applicants with the same level of housing need, where both have bid for a property. 22.     Moreover, if there are any particular circumstances during the short-listing period that does not fit into the above, the Letting Manager together with the Group Manager will decide whether the circumstances of the applicant without a local connection are sufficiently compelling to render it appropriate to allocate property under the circumstances.  23.     I have to say, however, that this is a narrow discretion, which has not yet been exercised. I have difficulty in envisaging a situation where it may become relevant, so as to give examples to the court. This difficulty derives from the fact that if a person does not meet the residence, employment or family ties criteria for establishing a local connection (see above, para 15) but is accepted to have a genuine need to move to the borough, then we would expect that applicant as having a local connection for special reasons…  The examples which I have given of such a need [above in paragraph 15] (ie the need for medical treatment available within the borough but not where the applicant is currently living, or the need for the child to attend a special school not available outside the borough), are but examples of needs which may fall within special reasons.  There is no list of needs falling within, and those falling outside, the category. In principle, any type of need which leads to a person having to move to the Defendant’s borough could, if accepted as genuine, bring an applicant within the special reasons category, and thus afford the applicant a local connection.  24.     The discretion to which I have referred, at para 20, would therefore only be applicable to an applicant who had no local connection by reference to residence, employment or family ties, and who had no need to move to the borough such as to bring them within local connection for special reasons, yet whose circumstances were sufficiently compelling to require an exception to be made to the general policy on local connection.  As I have said, I am unable to think of an example of such a case, but the discretion is there in case a case should arise in future in which a reason for its exercise can be identified. 25.     This is the manner in which the policy on local connection has been operated from its inception in April 2005.  The Defendant does not operate blanket policy, as averred by the Claimant, though it must comply with the requirements of s167(8) of the Housing Act 1996, as amended, and allocate only in accordance with its allocation scheme.  Within that requirement, the Defendant considers each case on its own merits, in the manner, which I have explained above.  For each successful bid, the Defendant considers a variety of factors including the number of applicants that bid for the property, their housing needs, their waiting time, their immigration status, their medical conditions, their financial status and local connection. 26.     He goes on to say that the way in which a lack of a local connection operates is not set out in detail in the Scheme and he does not believe that it has to be.  To avoid further misunderstanding it is, as he says, to be added to the Scheme.  A draft is attached to his witness statement.  27.     Again after setting out the meaning of local connection the draft continues as follows:  “As part of the assessment process for allocations the allocation officer will check whether or not an applicant has local connection based on the four criteria above.  Additionally all bids will be assessed in the light of the applicant’s housing needs an effective date and priority will be awarded accordingly.  The allocation officer will not prioritise an applicant with a lower housing need over one with a higher housing need, regardless of local connection. However, where two applicants with the same level of housing need bid for the same property, and one has local connection but the other does not, the property will be allocated to the applicant with local connection, for example, an applicant with additional preference or reasonable preference, who is number one in the queue, will be allocated a property even if she or she does not have local connection provided that there are no other applicants that bid for the same property with the same level of preference who have a local connection. But where an applicant with additional preference or reasonable preference, but no local connection, is ranked as number one on the bid, and another applicant with the same level of preference who has local connection is ranked as number 2 on the bid because of the effective data the council will allocate the property to the applicant ranked as number 2. The lettings manager in conjunction with a group manager has discretion in exceptional circumstances to allow an applicant with no local connection to take priority over another applicant with the same level of need and a local connection.  It is not possible to give examples of when this power might be exercised as where an applicant has a genuine need to move to the borough this will normally result in their requiring a local connection because of special circumstances.” 28.     I am told that this scheme was amended by the addition of those words on 22 July 2009, the day before the hearing, but the defendant says that the policy described has been in operation at all relevant times, and I have no reason to think that that is not true.           ­    Time 29.     On behalf of the defendant Mr Manning points out that many of the allocations about which the claimant complains are a long time ago.  He also submits that her underlying complaint is about the Scheme and/or a policy in applying it, which had been the same throughout and which began to affect the claimant’s bids a long time ago.  It is therefore submitted, on the defendant’s behalf, that this claim is out of time. 30.     Mr Manning is right to say that the issues are essentially identical in the claimant’s complaint against each of the allocations in which she has been unsuccessful.  However, it does not seem to me that that fact prevents her from choosing to challenge recent allocations.  If she is right in saying that the allocations are unlawful, that applies to each one of them and each one is separately amenable to challenge, even if the reason for the illegality is a policy or practice adopted a long time ago.  If it were not so, the policy or practice would in effect gain legality through the lapse of time because it would become impossible to challenge. 31.     The position here is that the claimant’s challenge has been clearly based on individual allocations of housing stock to others.  Some of those allocations were in the three-month period before proceedings were issued, including two in February 2009.  I do not think it can be said that this claim is out of time in relation to them. The defendant continues to allocate accommodation to applicants other than the claimant, despite her place in the queue for them, and some of the most recent allocations have been the subject of applications for specific relief in these proceedings.  I reject, therefore, the submission that this claim is out of time.  ­The Grounds of challenge  32.     Mr Latham raises a number of grounds of challenge to the allocations made by the defendant and explained in the way I have indicated. As he acknowledges in his written skeleton, they are different ways of putting the same underlying challenge, that the defendant is not allocating housing in accordance with its published scheme. 33.     As set out in the skeleton, and as expanded further in the course of oral argument, the claim has two principal aspects.  The first is this: 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. 34.     Alternatively, if the discretion is being exercised, the claimant is given no reason, each time she makes a bid, why the discretion is exercised against her.  Further, the Scheme itself gives no basis upon which the discretion is to be exercised, but that means that it allows for no rational exercise of discretion, or is too vague and uncertain.  If that is right the discretionary provision itself could not stand; and the result would be that the reduction of the claimant’s priority, a purported exercise of that discretion, would not be lawful. 35.     The second aspect of Mr Latham’s argument takes into account the policy.  If the defendant’s defence to the argument, put as part of the first aspect, is that the policy applied shows that there is no mandatory or irrational exclusion, and that the provision is neither vague nor uncertain in its application, then the claimant’s argument moves from the general principles of administrative law to section 167(8).  Mr Latham argues that the defendant cannot rely on its policy because that sis an assertion that allocations are made other than in accordance with the Scheme.  If the position is that allocations are made in accordance with the policy rather than the Scheme, then they are made unlawful by section 167(8). Discussion 36.     It appears to me that a court ought, if the option is open, to prefer the real over the unreal.  The reality in the present case is, as I find, that the allocations in question have been made according to the policy or practice set out in the later letters, Mr Adeyeni’s witness statement and the draft now implemented in addition to the published scheme. So I begin by deciding whether the defendant was entitled to act on the basis of a policy, and this policy in particular, given that it was not published as part of the scheme.  37.     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. 38.     Secondly, where there is a discretion the person exercising it is, generally speaking, entitled to have a policy as to how the discretion will be exercised. Such a policy will help to ensure that the exercise of the discretion is rational and that like cases are treated alike (see ­Re Findlay [1985] 1 AC 318 at 335 to 336, per Lord Scarman).  In the context of section 167 of the Housing Act 1996, Mr Latham refers me, in particular, to 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, as authority for the proposition that the effect of section 167(8) is that in order to be able to be operated lawfully the policy must be incorporated in the published scheme itself.  39.     I do not regard those cases as establishing that.  On the contrary, it seems to me that they establish the opposite.  (The decision of the House of Lords in R v (on the application of Ahmad) v Newham London Borough Council [2009] UKHL 14 overrules many of the existing authorities on the legality of schemes, of which the cases cited are two, but that does not affect the issue under discussion here.) Reilly and Mannix concerns a scheme which was itself challenged for an irrational failure to take into account variations of needs.  There was a published allocation scheme which attributed points to applicants by reference to a table, but there was in addition a provision for “discretionary points” to be allocated in certain circumstances.  Richards J found that:  “There can be no doubt that, subject to the residual discretion, the method of calculating allocations points under the present scheme is incapable of producing a fair assessment of applicants’ respective housing needs.  … Nor do I think that the residual discretion can be viewed as a rational way of redressing the balance.  Even leaving aside my concerns about the restrictive nature of the discretion available, in practice, under the scheme as presently operated, the residual discretion is not a satisfactory way of bridging the gap between the outcome of the category-based points calculation and the true assessment of need.  It is too vague and uncertain and results in a disproportionately large element of need being subject to assessment on an undefined and unguided discretionary basis.” 40.     That was a conclusion that in the context of that scheme the discretionary element did not save the scheme as a whole from the defect alleged.  41.     Lin v London Borough of Barnet [2007] EWCA Civ 132 again concerned a points-based scheme.  Here certain tenants of private landlords, who were about to become homeless because the property was “about to be returned to the landlord”, were awarded a bonus of 300 points which would be sufficient to take such a person to near the front of any queue.  That was stated in the scheme.  What was not stated was an important qualification, which was this: the additional points were only available:                “(i) during the period three months before the date on which the lease is ‘returned’ to the landlord, and, (ii) for a period of three months thereafter, or, if no allocation occurs within that period, until long-term temporary accommodation was provided”.  42.     The existence of that qualification was not in the published scheme.  At first instance Hughes J held that the fact it was not stated in the scheme did not give rise to an illegality.  So far as that provision was concerned, Dyson LJ, with whom Hallett LJ and Sir Peter Gibson agreed, said this of the argument of counsel for the local authority, who submitted that this qualification did not need to be in the published scheme: “Mr Baker seeks to support the decision of the judge.  He points out that what he describes as a similar argument was rejected in the Lambeth case at [23]-[25]. But the argument there was that the scheme was flawed because it did not show who would qualify for what Group and who in each Group would achieve preference, and that it was not lawful to leave it to officers to make decisions unless the criteria were clearly spelt out.  Collins J said that the scheme did not have to contain the degree of precision that was submitted to be necessary.  Mr Baker submits that the window of opportunity for the lease-end points does not have to be described in the scheme.  That kind of information is what one would expect to be communicated by the council officers.  This is a short point not capable of much elaboration.  In my judgment information as to when and for how long the 300 points are available is not a mere matter of detail.  It is central to the operation of this part of the scheme.  I consider that it is an important “aspect of the allocation process” which section 167(1) required to be included in the scheme and that because it was not so included to that limited extent the scheme is invalid.” 43.     Neither of those cases gives, in my judgment, any basis for saying that the published scheme had to contain every detail of the way in which discretions would be exercised, nor does either suggest that discretions in a scheme are unlawful.  If a scheme depends to too great an extent, on discretions, it may be unlawfully uncertain, and a scheme which does not contain a matter that is not a mere matter of detail may be bad for that reason.  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. 44.     However, this is a question of judgment on the individual circumstances, as Dyson’s LJ observation make clear.  His reference to the Lambeth case is to R (on the application of A) and R (on the application of Lindsay) v Lambeth Borough Council) [2002] EWCA (Civ) 2084 where Collins J, giving a judgment with which Judge LJ and Pill LJ agreed, said this: “23. Mr Arden has made a general attack on the scheme on the ground that it lacks transparency. He submits that the 1996 Act was intended to change the law so that those who applied for housing accommodation should be able to look at a scheme and understand from its terms exactly how reasonable preference is accorded. This scheme does not show who will qualify for what Group and who in each Group will achieve preference.  It is not lawful to leave it to officers to make the decisions unless the criteria are clearly spelt out and understood.  This, submits Mr Arden, is to be derived from the use of the expression ‘framed so as to secure’.     … 25. I do not accept that a scheme has to contain the degree of precision Mr Arden submits to be necessary.  The wording of the Act does not require it. The scheme must set out all aspects of the allocation process, but it is not necessary to do more than Lambeth has done, that is to say explain what criteria apply to each Group and to indicate that an officer will allocate in accordance with those criteria which may be general.”   45.     To that authority, that there is a matter of judgment involved in deciding what needs to be in a scheme and what is a level of detail that is not required to be in the scheme, Mr Manning adds R v (on the application of Faarah v Southwark London Borough Council [2008] EWCA (Civ) 807 where the Court of Appeal held unlawful certain provisions intended to cover the transition in that borough from a points-based scheme to a choice-based scheme.  Toulson LJ said this at [41]:   “…the statute gives to a housing authority a wide discretion in devising its allocation scheme. Having done so, the authority must not allocate housing accommodation except in accordance with the scheme; s 167 (8). In this case Southwark adopted a new scheme incorporating the criteria for medical priority set out in paragraph 3.9. It then introduced an unpublished administrative practice which cannot be squared with those criteria. During the appeal Mr Broatch was invited to explain how the administrative practice could be reconciled with the medical criteria set out in paragraph 3.9. He was unable to do so. It cannot.     The practice was in breach of Southwark’s duty under section 167(8).             Sedley LJ agreeing said this at [53]:   “Both Southwark and other authorities with similar schemes have a duty to make sure that their schemes are compliant with their statutory obligations and are not subverted by inconsistent administrative practices.”             Ward LJ agreed with both judgments.    46.     Again there is no indication that an administrative policy or practice is in itself unlawful.  The problem there was that the practice or policy was inconsistent with what was published.   47.     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.   48.     That conclusion is sufficient to deal with the claimant’s grounds in so far as they were based on a need to look at the Scheme in isolation.  The defendant was entitled to have, and did have, a policy setting out the principles for the allocation of the discretion in question.  I have said that in my judgment nothing in the policy runs counter to what was published in the scheme, and I must elaborate on that because of a number of arguments put by Mr Latham to the contrary. I must deal with them despite Mr Latham’s clear concession that if the policy had been contained in the published scheme it would not have been unlawful.  I do that because Mr Latham’s arguments arise in circumstances where the policy was not so incorporated: the Scheme, including the policy, would have to be, and now has to be, read as a whole: but a policy outside the Scheme might contradict the Scheme.  I record the concession, however, because it must also be a concession that nothing in the policy breaches the defendant’s duty to have regard to guidance given by the Secretary of State, and in so far as the concession is of that I regard it as properly made.      49.     Turning to Mr Latham’s arguments, first it is said that in effect the policy operates to impose a blanket ban on those without a local connection.  However, that is not right for two reasons.  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.    50.     Mr Latham puts what is essentially the same argument in another way when he says that the “may” of the scheme has been turned into a “will” or a “shall” by the policy.  I do not consider that that is right.  The policy shows how it comes to be that the claimant has not received an allocation.  It also shows why, as appears to be the case, nobody without a local connection has received an allocation.  Each accommodation allocation is considered individually, after bidding is closed, in order to see if the lead bidder has, or has not, a local connection and, if not, whether that bidder is in the highest priority band from which bids have been made.  The result of that investigation produces the results I have mentioned.   51.     It is clear that what has happened in each case is a judgment as to whether in the case of that property, and given the bids that have been received, the priority of the person without the local connection should be reduced or not.  Although the point was not specifically raised, I would, if necessary, take the view that the residual discretion saves the policy from being treated as an unlawful fetter on the discretion indicated by the Scheme.   52.     The last point raised by Mr Latham was that the operation of the policy undermines the scheme as a whole in its application to the claimant and to others without a local connection.  In practice, a person who is in the same preference band as another bidder, but has a local connection when the other bidder does not, will be preferred.  This means in Mr Latham’s submission that there are, in reality, not four preference bands but eight.  Each published band is in practice divided into those with and those without a local connection.  This means, as he points out, that a person without a local connection cannot bid tactically in the way that those with a local connection can.  The on-line information given to bidders, including the claimant, may show that she is at the front of the queue when the assessment of her place in the queue is limited to the time she has been on the waiting list and the public preference band she is in. She, however, cannot know whether she is in fact going to lose her place to a person who is in the same preference band, but who has a local connection. So she does not, under those circumstances, have the information to enable her decide to use her bid that week on a different property where there is more chance of her eventual success.   53.     It seems to me that that argument is misplaced. The notional division into eight rather than four bands is, in any event, not easy to understand.  If the principle was right there would have to be numerous sub-bands recognising all the individual factors that the scheme allows to be taken into account after bidding has closed, and perhaps ranking them. However, the position is that 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.  What Mr Latham is essentially suggesting is that the scheme could be different. No doubt it could be, but it is not.    54. 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. That is specifically set out in section 159(7) and was emphasised by Lord Neuberger at in Ahmad at [46].   55.     Mr Latham’s final point relates to information.  The primary function of a scheme is to regulate the allocation of housing accommodation.  It has the subsidiary purpose of giving information as to how housing accommodation will be allocated. Such is clear from the statute. It is also clear that the scheme itself gives no information about the application of the defendant’s policy in relation to those with no local connection.  It might certainly be said that the earlier letters sent out by the defendant to the claimant do not give the information she might have wished to have.  However, the later letters certainly do; and there is no reason to say that the policy has been concealed.    56.     I am told that the claimant has not made any request for information as to how her application was likely to be treated under the scheme, as provided by section 167(4A)(a)(i). If she had asked she would no doubt have been given the information she now has.  None of these decisions, or the policy or the scheme, are bad for lack of reasons.  For the foregoing reasons, I conclude that this claim must be dismissed.             57.     MR MANNING:  I am very grateful for your Lordship’s judgment.  The question of costs arises.  I understand that the claimant is in receipt of public funds for this claim.  That is a matter that, as I read the cost rules, can be resolved by the costs judge on an application made in accordance with the rules.  All I would ask for at this stage from my Lord is an order for costs in principle, subject to a detailed assessment, and then, as I understand the process, it is for the local authority to decide whether within three months to make an application to the costs judge for costs. Any question of her own liability will be dealt with at that stage. 58.     THE DEPUTY JUDGE:  Mr Burton, have you anything to say about that? 59.     MR BURTON: My Lord, I am not in a position to resist the Cost Order.  I would add at this stage that we would seek detailed assessment of the claimant’s publicly funded costs. 60.     THE DEPUTY JUDGE:  Yes.  You may have that assessment, Mr Burton, and I will order, in principle, costs to be paid by the claimant, subject to detailed assessment in due course. 61.     MR BURTON:  As you correctly pointed out at the beginning of this hearing, Mr Latham unfortunately was not able to be here. He has asked me to ask the court for the indulgence, of having the question of whether or not permission ought to be granted, to pursue this matter further being resolved by your Lordship looking at (?) the papers after the submissions, I imagine, by both parties. I think my learned friend is content for that course. 62.     THE DEPUTY JUDGE:  It is lawful, is it, Mr Manning? 63.     MR MANNING: My Lord, I do not see that there is any impediment on your Lordship taking that course if that is the course. 64.     THE DEPUTY JUDGE:  It seems to me to be appropriate.  Mr Latham did know in confidence the bottom line, but nothing else.  He needs an opportunity to consider. 65.     MR MANNING:  The position is, as I understand it, that any appeal from your Lordship would not constitute a second appeal and therefore your Lordship has jurisdiction to consider it.  My learned friend or Mr Latham may, in any event, within 21 days apply in writing to the Court of Appeal.  I do not object to the course.  I do point out the 21-day time limit. I am not agreeing to an extension of that, if that is sought by my learned friend.  I do not understand that to be the case. 66.     THE DEPUTY JUDGE:  Does the application need to be made to, and refused by, me before it can be made to the Court of Appeal? 67.     MR MANNING:  Not as I read the rules. As I understand it, it can be made straight to the Court of Appeal if that is the course that those advising the claimant seek to take.  I suppose by applying to your Lordship first they would have that additional opportunity to persuade your Lordship to give permission.  68.     THE DEPUTY JUDGE: Time is running. 69.     MR MANNING:  Time is running and it is not a requirement of the rules. 70.     THE DEPUTY JUDGE:  Mr Burton, you have heard that.  I am perfectly content to deal with an application in writing, if it is made.  At this stage of the year I cannot commit to dealing with it at any particular time. Time will be running whether I am dealing with it or not. 71.     MR BURTON:  The bottom line is that even with the Court of Appeal if an application is made, it is not likely to be dealt with particularly quickly at this time of the year. 72.     THE DEPUTY JUDGE:  No, but the application to the Court of Appeal would have to be made within 21 days, even if you thought that there was still an application outstanding before me. 73.     MR BURTON:  That is absolutely right and I am sure that caution will be taken. 74.     THE DEPUTY JUDGE:  In those circumstances it seems to me that I should perhaps make the time in which you could apply to me a very short one indeed, because otherwise all sorts of difficulties might arise in the Court of Appeal considering an application when I have already dealt with it in effect.  Do you press the application you made, or are you content to know that you can make the application to the Court of Appeal? Do you want to take a moment for instruction on that? 75.     MR BURTON:  I can do. 76.     MR BURTON:  What I would be most grateful for is if your Lordship were willing to give Mr Latham the opportunity, albeit subject to a very tight timescale, then Mr Latham can reach his own views as to whether or not he wishes to relinquish one of his two opportunities to seek permission, and only to persuade the Court of Appeal to grant it if he feels unable to comply with the timetable, or otherwise feels it sensible simply to direct his energies in one direction rather than two.  77.     In practice the Court of Appeal likes to know that applicants have made applications to judges making decisions before them before they trouble them.  As much as anything, it is a question of courtesy to put those arguments before that judge.  That is why 78.    Mr Latham, I would think, would want to, at the very least, consider that opportunity. 79.     THE DEPUTY JUDGE:  Given the excellence of the notes that you and those sitting behind you have taken, how long will it take Latham to reach a view on that? 80.     MR BURTON:  To a certain extent it is a matter for your Lordship as ho how much time this court would like to give.  I would ask for three days to make those submissions, perhaps giving my learned friend another three days if they wish to apply.  It is a matter for your Lordship to respond accordingly thereafter. The submissions that will be put forward to your Lordship are likely to be replicated in many submissions made to the Court of Appeal.  There will not be, as it were, two sets of work from one instructing solicitor, not necessarily Mr Latham– 81.     THE DEPUTY JUDGE:  What do you think about that timetable, Mr Manning? 82.     MR BURTON:  In practical terms I am not away during the course of next week. If something were served on me then I ought to be able to deal with it within that sort of timetable.  I do not know about the availability of my instructing solicitor. My instructions will be to oppose the grant of permission in any event.  I suspect we could comply with that sort of timescale.  It is a matter for your Lordship.  It is quite a complex way of dealing with what need not be a complex matter.  If that is the way my learned friend wishes to deal with it, then I am not going to raise any particular objections.  I cannot say I will not be able to deal with what comes up in that time. 83.     MR BURTON: Your Lordship has heard the arguments from Mr Latham already and knows what the issues are.  He has given a very full judgment in that regard.  If your Lordship is available at this stage to give an indication as to the likelihood of any permission being granted by this court, that will also be taken on board, no doubt, by Mr Latham. He will do his very best not to produce undue work.  I am not really in a position to make submissions on his behalf today, save to say that there is a delicate point about the extent to which this is an issue which this scheme ought to have published and made aware, especially now that the local authority are deemed fit to do so.  I am sure that will be the focus of Mr Latham’s submissions when made.  Perhaps in the circumstances your Lordship feels able to give an indication to me that I shall pass on to him, and he can then add that to the– 84.     THE DEPUTY JUDGE:  That will give him three, which I am sure is one more than he is entitled to.  Mr Burton, if an application is going to be made it will need to be made in writing. It will need to be made before the close of business on Tuesday by email to an address I am about to give you.  Mr Manning must reply before the close of business on Friday to the same email address, and the decision will be made by me, I hope, by the close of business on Monday. I do not mind being reminded to that same email address.  I am just going to hand down the address.  In particular, if there is not a result by Tuesday morning would one of you mind reminding me?