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

Local authority – Housing policy – Housing allocation scheme – Defendant local authority prioritising applicants for housing — Scheme having unpublished element of discretion favouring applicants with local connection – Claimant seeking judicial review of defendants’ method of allocating housing — Whether defendants lawfully relying on unpublished discretionary element of policy — Whether defendants allocating housing in accordance with published scheme — Application dismissedThe defendant local authority implemented a housing allocation scheme pursuant to Part VI of the Housing Act 1996, which banded applicants into categories of priority depending on their housing needs. The details of the scheme were available to the public in accordance with the defendants’ obligations under section 167 of the 1996 Act. Under the policy, applicants were required to bid for particular properties and the longer they had waited for a property to become available, the higher was their priority.When bidding closed, the top bidders were shortlisted and priority among them was allocated, inter alia, by reference to the applicant’s local connection with the relevant borough. “Local connection” was defined in section 199 of the 1996 Act and depended on the assessment of several factors, including normal residence, employment or family associations in the borough or other special circumstances. Where two bidders had the same level of priority, the one with a local connection would take priority.The claimant lived in Newham but owing to problems in the area wanted to apply for housing in the defendants’ borough, where she worked and knew people. She was placed in the relevant band and started bidding for properties. She was the top bidder on a number of occasions but was never offered a property because, in each case, her priority had been reduced because competing applicants had local connections. The discretionary aspect of the defendants’ policy, namely the local connection criteria, although averred to, was not actually set out in the scheme document. The claimant applied for judicial review of the defendants’ policy, challenging the fact that they were failing to allocate housing in accordance with their published scheme. She argued that: (i) they were not allowed to act on criteria in their policy that were not known to the public; and (ii) the exercise of the discretionary “local connection” element imposed a blanket ban on people who had no local connection. Held: The application was dismissed.A published housing allocation scheme was not required to include every detail of how any discretion contained in the scheme was to be exercised. It was a question of judgment for the decision maker in each case to decide what aspects of policy should be included and which should be omitted from the published details and how the discretion should be exercised: R v Islington London Borough Council, ex parte Reilly (1999) 31 HLR 651, R (on the application of Mei Ling Lin) v Barnet London Borough Council [2007] EWCA Civ 132; [2007] HLR 30 and R (on the application of Ahmad) v Newham London Borough Council [2009] UKHL 14; [2009] NPC 36 considered).Whether a discretionary element was unlawful was a question of degree having regard to the circumstances of its exercise: R (on the application of Lindsay) v Lambeth London Borough Council [2002] EWCA Civ 1084; [2002] HLR 57 and R (on the application of Faarah) v Southwark London Borough Council [2008] EWCA Civ 807; [2009] HLR 12 considered. In the instant case, the defendants did not have to publish and set out in the scheme itself the discretionary element of their policy. The discretion had no bearing on the central issue of prioritisation and was clearly averred to in the scheme. Moreover, the level of detail inherent in the policy was not something to which the scheme needed to descend and it would have made the scheme unwieldy. It was clear from the terms of the scheme that there was no blanket ban on applicants without a local connection. A judgment had to be made in respect of each allocation.The way in which the scheme had been implemented showed that each application had been reviewed on its merits by reference to the overriding consideration of prioritisation. Accordingly, the defendants had been entitled to take the view, on each of the occasions complained of, that the claimant’s bid for housing should be rejected.Robert Latham (instructed by SA Carr & Co) appeared for the claimant; Jonathan Manning (instructed by the legal department of Barking and Dagenham London Borough Council) appeared for the defendants.Eileen O’Grady, barrister