Rouse Tout A Tout, R (on the application of) v London Borough of Haringey [2012] EWHC 873 (Admin)

[2012] EWHC 873 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/04/2012
Before
THE HONOURABLE MR JUSTICE UNDERHILL
Between
The Queen on the application of Rouse Tout a ToutClaimantLondon Borough of HaringeyDefendantThe Queen on the application of Maryan HeffClaimantLondon Borough of HaringeyDefendant
Mr Richard O’Sullivan (instructed by Tyrer Roxburgh) for ClaimantsMs Judith Maxwell (instructed by Corporate Legal Services, London Borough of Haringey) for DefendantHearing Hearing dates: 2 March 2012
JudgmentThe Hon. Mr Justice Underhill :
[1]These two linked claims challenge the lawfulness of a process known as “auto-bidding” operated by the London Borough of Haringey (“the Council”) as part of its scheme for allocating housing under Part VI of the Housing Act 1996. The Claimants are represented by Mr Richard O’Sullivan and the Council by Ms Judith Maxwell, both of counsel.[2]I should start by setting out the statutory background. Section 167 of the 1996 Act (which falls within Part VI) requires every Local Housing Authority (“LHA”) to have a scheme for determining priorities for the allocation of what the Act calls “housing accommodation” but I will call “social housing” – that is, either the Council’s own housing stock or stock belonging to a registered social landlord or other person from whom it enjoys the right to nominate persons for a secure or assured tenancy (see section 159 (2)) – and as to all aspects of the allocation process. Section 169 (1) empowers the Secretary of State to give guidance to LHAs as to the exercise of their functions under Part VI, and authorities are required to have regard to any such guidance. Changes to the 1996 Act introduced by the Homelessness Act 2002 required LHAs to explicitly consider the introduction of schemes allowing applicants for accommodation a degree of choice. Specifically, section 167 (1A) reads:
“The scheme shall include a statement of the authority's policy on offering people who are to be allocated housing accommodation— (a) a choice of housing accommodation; or (b) the opportunity to express preferences about the housing accommodation to be allocated to them.”
Section 167 (2E) reads (so far as material):
“… the scheme may contain provision about the allocation of particular housing accommodation— (a) to a person who makes a specific application for that accommodation; (b) … .”
[3]The Council in 2002 introduced a scheme called “Choose Haringey” which, in accordance with the policy of the 2002 Act, included an element of choice. In 2006 it introduced a different “choice-based” scheme called “Home Connections”, which is the scheme with which I am concerned in these cases - I will refer to it simply as “the Scheme”. Under the Scheme the availability of social housing is advertised on a weekly rolling basis, and those on the register are entitled to “bid” – that is, to put their names forward – for properties so advertised. There will be an opportunity to view, following which the property is formally offered to the bidder with the highest number of points. Points are accorded to those on the register in the familiar way by reference to a range of factors which I need not set out here, save to spell out the well-known fact that points are awarded for the length of time for which a person has been on the register, so that the longer you are on the register the better your chance of success. There is obviously no set number of points at which a person on the register becomes entitled to be allocated a property – that will depend on the competition for each particular property – but some broad generalisations are possible: as to this, see paragraph 6 below.[4]One of the principal groups seeking accommodation under Part VI are of course persons who are homeless within the meaning of Part VII of the Act. I was told that this group constitutes about 30 per cent of those on the register in Haringey. By section 193 (2) of the Act the Council is under an obligation to “secure that accommodation is available for occupation” by any person who “is homeless, eligible for assistance and has a priority need”, provided that they did not become homeless intentionally. It will not in the typical case be possible to make an immediate allocation of social housing to a person to whom the duty under section 193 (2) is owed: although persons who are homeless and in priority need receive on that account a substantial points allocation, the points to which they are entitled when first placed on the register will rarely be sufficient to outbid other applicants. Accordingly the Council is in practice obliged to accommodate them in “temporary” accommodation rented from the private sector. The cost of such accommodation to the Council is very high. They will, however, in due course accumulate sufficient points to qualify for an offer. Section 193 (7) provides as follows:
“The Local Housing Authority shall … cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.”
Sub-section (7A) provides that such an offer will be a final offer “if it is made in writing and states that it is a final offer for the purposes of subsection (7)”.[5]It became apparent following the introduction of the Scheme that many of those who are housed by the Council in temporary accommodation pursuant to the duty under section 193 (2) – “section 193 tenants” – are not eager to bid for social housing. The housing that is advertised will often be less attractive or less convenient to them in their particular circumstances – and the more so the longer they have occupied the temporary accommodation in question. This reluctance is particularly marked where the temporary accommodation is in the more favoured western part of Haringey, since social housing is more readily available in the eastern part, which is more deprived and less attractive. Section 193 tenants were either simply not bidding at all for social housing or were doing so only rarely, and generally unsuccessfully. This had serious consequences for the Council’s already stretched housing budget, since it meant that people with sufficient points to qualify for an offer of suitable social housing were instead remaining in temporary accommodation, at far greater cost.[6]It was in order to meet that problem that the Council in July 2009 decided to introduce the auto-bidding procedure. It works as follows. The Council identifies points thresholds representing the levels at which applicants could reasonably expect to be successful in a bid for social housing of the kind appropriate to their circumstances: for example a threshold of 500 points is set for studio accommodation, 600 points for a one-bedroom property, 800 points for a two-bedroom property and so forth. Section 193 tenants who had, on the introduction of the change, accrued points equivalent to the relevant threshold were notified that the new arrangements would now apply to them – and similar notification is given thereafter to others as they reach the relevant threshold. Following such notification they have a period of two months during which the previous bidding arrangements under the Scheme continue to apply. After that, however, they will be notified of, and given the opportunity to view, any property in the relevant category which is advertised for bidding, and will be deemed to have bid for it (whether they have viewed it or not); and if, following the viewing date, they are found to be the bidder with the highest number of points the property will be offered to them. Such an offer will constitute a final offer within the meaning of section of 193 (7), with the result that the Council’s duty under section 193 will be discharged and it will cease to pay for the temporary accommodation. That is of course subject – as sub-section (7) expressly acknowledges – to the right of review provided by section 202 of the Act. By section 202 (1) (f) an applicant has the right to request a review of “any decision of a Local Housing Authority … as to the suitability of accommodation offered to him as mentioned in section 193 (7)”: sub-section (1) (a) makes clear that such a review may be requested whether or not the applicant has accepted the offer. (There is also a right of appeal under section 204 to the County Court on a point of law.)[7]All section 193 tenants were sent a letter and DVD in July 2009 explaining the new system. Implementation took a little time, but those who had already reached the necessary threshold were in due course sent letters telling them that auto-bidding would be activated in their case on a specified date (at least two months from the date of the letter) and explaining the procedure; and similar letters were sent to others as they reached the threshold. In each case there was also a home visit from a Council officer to explain the procedure.[8]The effect of the auto-bidding procedure is seriously to limit the degree of choice available to those in temporary accommodation in accordance with the Council’s duty under section 193. Once the process kicks in, they are in practice obliged to accept the first property offered to them (which means the first property that becomes available which is not bid for by someone with higher points), subject only to the right of review as to suitability. It does not, however, remove the element of choice altogether. Anyone in temporary accommodation has a free choice whether or not to bid for available properties up to the point at which they reach the threshold (though by definition their chances of success will be lower). They also have the two-month period referred to above after they reach the threshold but before auto-bidding is implemented. (I was told that about 800 properties come up per year, i.e. on average between 60 and 70 per month, though they will of course be of different sizes: about 25% are two-bedroom properties, which is the size appropriate for the Claimants in these cases.) When the changes were first introduced, that period was in practice a good deal longer because the programme of home visits took some time to complete.[9]It should also be noted that the systems previously in place did not give those on the register complete freedom of choice. Under the “Choose Haringey” policy operative between 2002 and 2006 the Council was entitled to, and did, make direct offers to those in temporary accommodation who were not bidding when eligible to do so or who were refusing offers made. And before that, i.e. before any “choice-based” system was in operation, it was standard practice for the Council to seek to discharge its duty under section 193 by making a single offer; and I am told that that is still the practice of some councils. I should also say that the evidence is that the right to require a review under section 202 is far from being merely a formality. Since the introduction of auto-bidding just over 600 offers have been made in response to automatic bids. Reviews have been sought in 261 cases and have been upheld in 56.[10]I should say for completeness that in March 2011 the Council introduced a new version of its housing allocation policy, though it continues to incorporate provision for auto-bidding. But since that version was not in force at the relevant times its provisions are immaterial for my purposes.[11]The Claimants are both section 193 tenants in whose cases the Council regards its duty as discharged by the making of a final offer of social housing in response to a deemed bid under the auto-bidding procedure. I need not at this stage set out the circumstances in any detail. In outline:• Ms Tout a Tout was given temporary accommodation under section 193 in December 2002. She has a son now aged nine. In July 2009 she was sent the standard letter and DVD explaining the introduction of the auto-bidding procedure. She had not at that point quite reached the relevant threshold – in her case 800 points – but she did so shortly thereafter. She received a home visit in November 2009 to explain the procedure and how it would apply in her case. She was initially offered a property under the auto-bidding procedure on 1 April 2010, but that offer was withdrawn following a letter from her solicitors. However, on 6 May 2010 (by which time she had 979 points) she was told that she was treated as having made an auto-bid for a property called 47 The Weymarks N17, and she was invited to view it on 12 May. She did not do so, but since she had more points than any other bidder a final offer was made to her of a tenancy of the property on 20 May, together with a further opportunity to view. She viewed the property on 8 June and signed a tenancy agreement. However, she had in the meantime commenced the present proceedings and she gave the Council a letter indicating that she was accepting the offer only on condition that if those proceedings were successful she should be allowed to make a further bid. The tenancy commenced with effect from 14 June and she moved in on or about that date.• Ms Heff was given temporary accommodation under section 193 in 2001. She has a daughter, now aged 17. Like Ms Tout a Tout she was sent a letter and DVD explaining the auto-bidding procedure in July 2009. She was at that time already over the appropriate threshold: she had in fact reached 800 points in November 2007, but she had only made four bids prior to the introduction of auto-bidding. In due course she received a home visit. The circumstances which led to her being made an offer which the Council regarded as discharging its duty under section 193 are complicated, and I deal with them in more detail below. For present purposes it is enough to say that the offer in question, for a property at 111 Waverley Road N17, was made on 29 April 2010. She did not accept it. She remains in her previous temporary accommodation pending the outcome of these proceedings.[12]The point was initially taken in the Council’s Acknowledgement of Service in both cases that the claims were out of time, since any challenge should have been brought at the time that the Claimants were notified that the auto-bidding system was being introduced. In the case of Ms Tout a Tout the point was also taken that the claim was academic since she had accepted the property offered. In practice, neither point was pressed before me. The Council is in fact understandably anxious to have a definitive decision on the question of the lawfulness of its policy, and of the way in which it was implemented in these cases, which is broadly typical (though there were some unusual features in Ms Heff’s case, as will appear).[13]Both Claimants raise a general challenge to lawfulness of the Scheme, at least as implemented. In Ms Heff’s case there is an additional point peculiar to the facts of her own case. I take the general challenge first.[14]The general challenge is pleaded in the Claim Form under the headings of “legitimate expectation”, “ultra vires” and “irrationality”. However, as developed by Mr O’Sullivan in his skeleton argument and his oral submissions, it became clear that these were essentially different labels (and arguably not the most appropriate labels) for a submission that in introducing the auto-bidding system the Council had failed to have regard to the guidance issued by the Sectary of State pursuant to section 169 of the 1996 Act. The guidance in question takes the form of a document issued by the Department for Communities and Local Government in August 2008 as a “Code of Guidance for Local Housing Authorities”: it is entitled “Allocation of Accommodation – Choice Based Lettings” (“the Code”). The Code is directed specifically to the exercise by LHAs of their functions under section 167 (1A) and (2E), being the provisions introduced by the 2002 Act. It is apparently the first guidance promulgated in relation to those provisions, notwithstanding that they had been in force for over five years. As the Code acknowledges, the statutory provisions in question do not make the use of choice-based systems by LHAs mandatory, but it confirms that it is Government policy that they should be adopted and the bulk of the Code is directed to LHAs who take that course.[15]Mr O’Sullivan drew attention to the following paragraphs of the Code:
“3.13 Housing authorities should not, as a matter of course, impose penalties on applicants who refuse an offer of accommodation which they have applied for under a choice based letting scheme. This is particularly the case where applicants are expected to apply for properties before they have had a chance to view them. Rather, authorities should ensure that applicants receive sufficient information about the property which is advertised to enable them to make an informed decision as to whether or not to bid for it. This is the best way to ensure that applicants do not bid for properties which do not meet their needs or aspirations. … 3.16 Some applicants may require a longer period than others. For example, applicants requiring additional assistance and/or support may wish to take advice in making their decision. Housing Authorities should allow sufficient time for such applicants to arrange for an adviser or advocate (who may be a friend or family member) to accompany them when viewing accommodation. This would be in line with a housing authority’s duty to make reasonable adjustments for disabled people, including changes to their practices policies and procedures. Applicants may also need more time to view properties, where they need to travel long distances to do so (see further at paragraph 7.17)”
A footnote to paragraph 3.13 gives a cross-reference to paragraphs 4.50-4.59. These read, so far as material:
“4.50 By virtue of sections 193 (3A) and 195 (3A) of the 1996 Act, housing authorities are required to give people, to whom they owe a homelessness duty under sections 193 or 195, a copy of the statement included in their allocation scheme under s. 167 (1A) about their policy on offering choice or the opportunity to express preferences about Part 6 housing accommodation. Housing authorities must therefore ensure that their allocation scheme addresses the extent to which they are able to offer choice (or the ability to express preferences) to people to whom they owe one of these homelessness duties (see paragraph 5.7 of the Allocations Code of Guidance). 4.51 The Secretary of State considers that people owed the main homelessness duty (under s. 193 (2)) should, wherever possible, be offered a choice of Part 6 accommodation where they are awaiting an allocation that will bring the homelessness duty to an end. … 4.54 The Secretary of State recognises that in certain circumstances (for example, where there is a shortage of social housing and/or where applicants owed the main homelessness duty do not have high priority under an authority’s allocation scheme) providing choice for applicants owed the main homelessness duty for an unrestricted period could mean that such applicants wait an unreasonably long time before they are offered suitable Part 6 accommodation. This is unlikely to be in the best interests of applicants or authorities, particularly where it leads to extended periods in temporary accommodation. Accordingly, authorities will need to consider whether, in these circumstances, it would be appropriate to limit the period during which applicants can exercise choice and refuse offers without bringing the homelessness duty to an end. 4.55 Applicants should not be put under pressure so that they feel constrained to bid for accommodation that may not be suitable for them and their household. This would be unacceptable for the applicant and would not discharge the homelessness duty (which requires that the authority is satisfied that the accommodation offered is suitable). Accordingly, the period during which they are allowed to take part in the choice based lettings scheme (referred to hereafter as “the bidding period”) should be realistic. In determining how long the bidding period should be, authorities should take into account the pressure on social housing in the district and the time it would normally take before an opportunity to bid on a suitable property became available for someone with similar priority under the scheme. Larger households and those with special needs which are difficult to meet (eg those who need accessible accommodation) may need a longer time to bid for properties since the availability of suitable vacancies is likely to be limited. 4.56 It is important that there is a process for examining why an applicant has failed to be successful in being offered a suitable CBL property during the bidding period. Where it becomes clear that nothing suitable has been advertised during the bidding period; that the applicant has not fully understood what he or she was expected to do under the scheme; or that the applicant was incapable of accessing the scheme without advice and assistance, the authority should consider extending the period. The authority should also address any need for further advice and assistance to enable the applicant to participate effectively in the choice based lettings scheme.” … 3.16 Some applicants may require a longer period than others. For example, applicants requiring additional assistance and/or support may wish to take advice in making their decision. Housing Authorities should allow sufficient time for such applicants to arrange for an adviser or advocate (who may be a friend or family member) to accompany them when viewing accommodation. This would be in line with a housing authority’s duty to make reasonable adjustments for disabled people, including changes to their practices policies and procedures. Applicants may also need more time to view properties, where they need to travel long distances to do so (see further at paragraph 7.17)” “4.50 By virtue of sections 193 (3A) and 195 (3A) of the 1996 Act, housing authorities are required to give people, to whom they owe a homelessness duty under sections 193 or 195, a copy of the statement included in their allocation scheme under s. 167 (1A) about their policy on offering choice or the opportunity to express preferences about Part 6 housing accommodation. Housing authorities must therefore ensure that their allocation scheme addresses the extent to which they are able to offer choice (or the ability to express preferences) to people to whom they owe one of these homelessness duties (see paragraph 5.7 of the Allocations Code of Guidance). 4.51 The Secretary of State considers that people owed the main homelessness duty (under s. 193 (2)) should, wherever possible, be offered a choice of Part 6 accommodation where they are awaiting an allocation that will bring the homelessness duty to an end. … 4.54 The Secretary of State recognises that in certain circumstances (for example, where there is a shortage of social housing and/or where applicants owed the main homelessness duty do not have high priority under an authority’s allocation scheme) providing choice for applicants owed the main homelessness duty for an unrestricted period could mean that such applicants wait an unreasonably long time before they are offered suitable Part 6 accommodation. This is unlikely to be in the best interests of applicants or authorities, particularly where it leads to extended periods in temporary accommodation. Accordingly, authorities will need to consider whether, in these circumstances, it would be appropriate to limit the period during which applicants can exercise choice and refuse offers without bringing the homelessness duty to an end. 4.55 Applicants should not be put under pressure so that they feel constrained to bid for accommodation that may not be suitable for them and their household. This would be unacceptable for the applicant and would not discharge the homelessness duty (which requires that the authority is satisfied that the accommodation offered is suitable). Accordingly, the period during which they are allowed to take part in the choice based lettings scheme (referred to hereafter as “the bidding period”) should be realistic. In determining how long the bidding period should be, authorities should take into account the pressure on social housing in the district and the time it would normally take before an opportunity to bid on a suitable property became available for someone with similar priority under the scheme. Larger households and those with special needs which are difficult to meet (eg those who need accessible accommodation) may need a longer time to bid for properties since the availability of suitable vacancies is likely to be limited. 4.56 It is important that there is a process for examining why an applicant has failed to be successful in being offered a suitable CBL property during the bidding period. Where it becomes clear that nothing suitable has been advertised during the bidding period; that the applicant has not fully understood what he or she was expected to do under the scheme; or that the applicant was incapable of accessing the scheme without advice and assistance, the authority should consider extending the period. The authority should also address any need for further advice and assistance to enable the applicant to participate effectively in the choice based lettings scheme.”
[16]Mr O’Sullivan relied essentially on three alleged departures by the Council from the guidance in the Code.[17]First, he referred to paragraph 3.13, which I have set out above, and submitted that the auto-bidding system – and more specifically the making of a “final offer” under section 193 (7) to a successful “auto-bidder” – represented the imposition of a sanction, namely the loss of the protection of the duty under section 193 (2), on persons who refuse an offer. But it is clear that the general principles stated in paragraph 3.13 are not treated by the Code as directly applicable to those in temporary accommodation by virtue of that duty: they are acknowledged to be a special case, for which the relevant provisions are those in paragraphs 4.50 to 4.59.[18]Mr O’Sullivan’s second and third points were directed more specifically to those paragraphs. The Code does of course clearly acknowledge that choice, and in particular the right to refuse offers, may need to be curtailed in the case of those in temporary accommodation: see in particular paragraph 4.54. But Mr O’Sullivan submits that:(a) contrary to paragraph 4.55, the “bidding period”, i.e. the period before auto-bidding kicks in, is unrealistically short; and(b) contrary to paragraph 4.56, the Council had no mechanism for examining why a person in temporary accommodation had failed to make a successful bid during the period before choice was curtailed. I do not accept either criticism. I take them in turn.[19]As to (a), I should note by way of preliminary that in the particular cases of both Claimants the actual “bidding period” was much longer than two months. They had been able to bid at any time since the introduction of the choice-based system in 2006. It is true that in the earlier part of that period their chances of success may have been low because they would not have accumulated sufficient points, and that it could be argued that their period of realistic choice only began when they reached the “threshold” (albeit that the threshold is only a rule of thumb); but, as already noted, Ms Heff at least had already reached the threshold by July 2009 and Ms Tout a Tout did so shortly afterwards. They accordingly had in practice many months to bid following the announcement of the policy. But it would not be helpful if I focused on those facts, which reflect the delays associated with the introduction of auto-bidding; and I am prepared to assume that they did indeed only have, realistically, a two-month period in which to exercise a free choice before auto-bidding took over. (And it could fairly be said in any event that the Claimants might not have been fully alive to their situation until they had had their home visits.) However, I am not prepared to hold that two months was an unrealistically short period in either of their cases. I was told that on average 16 properties are advertised each week, of which about a quarter will have two bedrooms. That means that they could be expected to have had a choice of over thirty properties to bid for during that period. It could not of course be guaranteed that any bids that they placed would have succeeded; but given that they were both over the relevant threshold there would be a good chance that they would. It is trite law that the court should be very slow to second-guess the judgments made by LHAs in the formulation of policies for the allocation of social housing: see, most authoritatively, R (Ahmad) v London Borough of Newham [2009] 3 All ER 755 per Lady Hale at para. 22 (p. 763). I am not prepared to say that the Council’s judgment that a two-month bidding period gave persons in the Claimants’ position an opportunity to exercise a reasonable degree of choice failed to conform to the requirements of the Code or was otherwise irrational. I would add – though this might only be an operative point if the question were marginal – that the Council’s only obligation is to “have regard to” the Code: a departure from it is not necessarily irrational.[20]As to (b), I have already referred to the fact that before auto-bidding is activated in any given case the person affected will have received a home visit from a Council official. That in my view represents a proper opportunity to identify any difficulties which he or she has so far experienced in operating the system or may be expected to experience during the ensuing two months. (There is some ambiguity in the paperwork exhibited by the Council as to whether the visit should precede the start of the two-month period rather than simply the date when auto-bidding is actually activated. It appears, however, that in practice the Council recognised – plainly correctly – that it should be the former, because the evidence of Ms Faulkner, the Housing Assessments and Lettings Manager, is that the reason why the first offer made to Ms Tout-a-Tout was cancelled – see paragraph 11 above – was that auto-bidding had been activated in her case on 23 December when the home visit had only been on 30 November.) The standard-form letter notifying the date at which auto-bidding will come into operation also contains an invitation to notify the Council of any relevant exceptional circumstances.[21]In my view, therefore, the general challenge to the lawfulness of the auto-bidding system fails. I turn to the particular circumstances of Ms Heff’s case.[22]I start by setting out the circumstances surrounding the making of the Council’s offer and her refusal of it. I have to say that the Council’s evidence, which was in other respects clear and well-presented, did not explain the position fully. But Ms Maxwell, on instructions, elucidated what inferences could be drawn from the documents exhibited, and Mr O’Sullivan sensibly made no objection. The position appears to be as follows:(1) On 26 April Ms Heff was “shortlisted” for 111 Waverley Road: that means that the computer programme identified her, because of the points she had, as appropriate to auto-bid for that property. Viewing was fixed for the following day, 27 April.(2) It is the Council’s case that Ms Heff would have been notified forthwith that she had been shortlisted, and of the viewing arrangements, both by telephone call and by text message. That is standard practice, and I was told that if it had been impossible to speak to her that fact would appear on the record, which it does not. There is nothing in Ms Heff’s evidence to suggest that she did not receive this notification.(3) Ms Heff did not attend the viewing. Nevertheless she was the bidder with the highest number of points, and it was accordingly decided to offer the property to her. The offer letter went out on 29 April(4) The system did not provide for section 193 tenants who had made an auto-bid to be taken out of the process until the outcome of that bid was known. To do so would not have been in their best interests since the bid might not be successful, and they would have lost the chance to bid – whether voluntarily or by auto-bid – for an acceptable property in the next weekly round (or possibly two rounds). Thus, on the same day that Ms Heff was sent the offer letter for Waverley Road – that is, 29 April – she was sent a letter from the London and Quadrant Trust (“L&Q”) telling her that she was shortlisted for one of their properties, 41B Warham Road N4, with a viewing date of 4 May.(5) Ordinarily L&Q would have been notified by the Council prior to the viewing date that since Ms Heff had been offered Waverley Road she would not be offered Warham Road, so that the viewing was pointless. That did not occur because of a combination of an intervening bank holiday and the absence on leave of the Council official responsible: that is unfortunate but venial, since the interval was of course only some five days. L&Q accordingly took no steps to revoke Ms Heff’s invitation. Of course, whatever L&Q did or did not know, one might have expected Ms Heff to have received the offer on Waverley Road prior to 4 May. But her evidence tends to suggest, though it is not quite explicit, that she did not do so; and it may be that the dispatch or receipt of the letter of 29 April was delayed for the same reasons as the notification to L&Q.(6) In any event Ms Heff attended the viewing of Warham Road on 4 May. She says that she told L&Q’s representative, Ms James, that she liked the property (which was in a much more attractive area for her), and that she was told in turn that she had the highest number of points and would accordingly be offered it: she was given a formal L&Q application form. That is partially confirmed in an e-mail from Ms James dated 22 June 2010, but Ms James also says in that e-mail that she said Ms Heff could sign an agreement “providing I get authorisation from London Borough of Haringey”. That was undoubtedly a correct statement of the position, and I accept that Ms James said it (though Ms Heff may not have paid much attention to it). The original invitation to view had also stated (in bold and in capitals):
“You will be sent a formal offer letter if you are accepted for the tenancy”. (7) Ms James informed the Council that Ms Heff had been given an application form, as being the bidder with the highest points; but on 7 May she was told that since Ms Heff had already accepted another property she could not be offered Warham Road. The property was offered to the bidder with the next highest points. (8) Whether or not Ms Heff had received the offer on Waverley Road before 4 May, she certainly became aware of it shortly afterwards. On 9 May she requested a review. The form says “I never received the decision”, but what she must mean is that she had not received it before she viewed Warham Road, since otherwise there would be nothing to review: indeed she says in terms that “the decision I want the Council to review is offering me a house I did not bid for”, which necessarily implies that she was aware of the offer of Waverley Road. (9) Mr Neale, the Housing Review Manager, replied the following day. He said that he was sure that Ms Heff had received the offer letter on Waverley Road “because you have called a number of officers to complain about it”
. He referred to, and offered a brief justification of, the auto-bidding system, by way of response to her complaint that she was being offered a property for which she had never bid. He warned her that if she did not now accept the property the Council would treat its duty under section 193 as discharged. He mentioned the possibility of an appeal to the County Court. (10) On 19 May the Council wrote again to Ms Heff giving her, in effect, another chance to accept Waverley Road. It pointed out the consequences of her failing to do so, and also that acceptance would not preclude her making a further review application. She did not however accept that offer and on 27 May the Council sent a formal “discharge of duty letter”. That was followed by a notice to quit from the landlords of her temporary accommodation, although, as noted above, that has not been activated pending the outcome of these proceedings.[23]Mr O’Sullivan submitted that the decision to treat Ms Heff as having refused a final offer was unlawful because(a) the process that led to that result was not transparent and(b) she had a legitimate expectation, having been invited to visit Warham Road and having been made an informal offer of it, that she would be allowed to choose it. The two points to a considerable extent overlap, and I will take them together.[24]I agree that the sequence of events in Ms Heff’s case was unfortunate. As I have said, I think it likely that she knew that she was being treated as having bid for Waverley Road before she went to see Warham Road; but I also think it likely that she had not at that point learnt that her deemed bid for it had been accepted. It was therefore understandable that she should assume that the viewing invitation for Warham Road, and in any event the subsequent “offer” (albeit informal) from Ms James, meant that she was not going to be offered Waverley Road: no-one had told her that the next week’s viewing offers could go out while a decision on the previous week’s bids was still in the pipeline. I can accordingly appreciate her disappointment when what she thought of as an offer from Ms James was withdrawn. In a perfect world it would have been better if Ms Heff (and others in a similar position) had been warned when invited to a “week 2” viewing that the opportunity might be trumped in the meantime by the outcome of the previous week’s round; and it was certainly a pity that the success of her bid for Waverley Road was not communicated to her, and to Miss James, before 4 May. But I do not believe that these failures of communication, such as they were, give rise to any claim in law, whether characterised as a breach of a duty to be “transparent” about how the scheme worked or as a breach of a legitimate expectation. I do not believe that anything that had passed between the Council and Ms Heff prior to her receipt of the final offer of Waverley Road gave her an expectation binding in law that she would be offered Warham Road or otherwise rendered the offer of Waverley Road unfair. Whatever she may have assumed, she knew or ought to have known that she had been treated as having bid for Waverley Road on 27 April, and the fact that she had not heard the outcome a week later could not amount to a representation that her bid had not been accepted. It was also made clear to her both in the letter inviting her to view Warham Road, and by Ms James, that an offer could only be made by a formal letter from the Council. She was not prejudiced in any way, other than by being disappointed, by having the chance to see Warham Road before receiving the offer of Waverley Road. She was given the opportunity to go and see Waverley Road again, with the opportunity of a further review; but she did not take it.[25]Mr O’Sullivan suggested in his submissions that the fair course for the Council to have taken in the events which had happened was to offer Ms Heff the choice of the two properties. I am not clear whether that would have been practicable. It depends on whether it learnt of her dissatisfaction with what had happened before L&Q had re-offered Warham Road to the next person on the list. But even if it had been possible, I do not believe that the Council was obliged to take that course. It was entitled to stick to its procedures. It is important not to lose sight of the fact that Ms Heff had had many months, even after the introduction of auto-bidding, to bid for suitable properties.[26]I therefore hold that the offer to Ms Heff of Waverley Road was a lawful final offer within the meaning of section 193 (7) of the Act and that the Council is no longer under the duty imposed by that section.[27]If that conclusion means that Ms Heff has lost points to such an extent that she will not be able to bid successfully for social housing when she loses her temporary accommodation, she will have paid a very high price for taking the stance that she has. Although she was wrong in taking that stance, it is easy to understand in human terms how she came to do so, for the reasons indicated above; and the delay by the Council, minor as it may have been, in communicating the outcome of her bid for Waverley Road contributed to the position. In those circumstances I would encourage, though I cannot require, the Council to exercise a humane discretion to give Ms Heff a second chance by treating her – if there would indeed otherwise be a problem in her being allocated social housing – as having sufficient points to enable her to make a successful bid, whether voluntary or by auto-bidding, perhaps by allowing her the benefit of the points that she enjoyed in May 2010. There would be nothing improper in the Council taking that course: even if it falls outside the terms of the current policy, such policies do not have to be rigidly applied in exceptional circumstances.[28]I dismiss both applications.