Rouse Tout A Tout, R (on the application of) v London Borough of Haringey

Choice-based housing allocation schemes may lawfully limit applicants’ freedom to choose where necessary to avoid prolonged stays in temporary accommodation. A two-month period for free bidding may be reasonable, particularly where suitable properties are regularly advertised and applicants have already had a substantial opportunity to bid. A local housing authority must have regard to relevant statutory guidance, but departure from guidance is not automatically unlawful or irrational. Adequate procedures for identifying applicants’ difficulties, including a properly timed home visit, may satisfy the guidance. Administrative confusion or disappointed expectations do not create a legally binding legitimate expectation where the scheme clearly requires a formal offer. A deemed bid may therefore result in a lawful final offer under section 193(7) of the Housing Act 1996.

These were two linked judicial review claims challenging the lawfulness of Haringey’s “auto-bidding” system for applicants housed temporarily under the homelessness duty in section 193(2) of the Housing Act 1996.

Under the system, applicants who reached specified points thresholds were given two months to continue voluntary bidding. Thereafter, they were deemed to bid for suitable advertised properties and could receive a final offer capable of ending the Council’s homelessness duty.

The claimants argued that the scheme failed to comply with the Secretary of State’s choice-based lettings guidance, was irrational, and created unfairness or a legitimate expectation in the individual circumstances of Ms Heff. The central issues were whether the general scheme was lawful and whether the offer made to Ms Heff was a lawful final offer.

1. General challenge dismissed. The Council was required to have regard to the Secretary of State’s guidance issued under section 169(1) of the Housing Act 1996. The guidance recognised that choice and the right to refuse offers might be limited for applicants owed the main homelessness duty, particularly where continuing choice would prolong temporary accommodation.
2. The two-month period before auto-bidding operated was not shown to be unrealistically short. The evidence indicated that approximately 16 properties were advertised weekly, including a significant number of properties suitable for the claimants’ household size. The court should be slow to second-guess an authority’s judgment in formulating social housing allocation policies: R (Ahmad) v London Borough of Newham [2009] 3 All ER 755. A departure from guidance was not necessarily irrational.
3. The Council’s practice of conducting a home visit before auto-bidding began provided a proper opportunity to identify difficulties in using the scheme and any need for assistance. The general auto-bidding policy was therefore not unlawful.
4. In Ms Heff’s case, communication failures concerning a later property were unfortunate but did not create a binding legitimate expectation. The scheme and the relevant communications made clear that only a formal Council letter constituted an offer. Her disappointment and assumption that the later property would be offered did not make the formal offer of the first property unlawful or unfair.
5. The offer of 111 Waverley Road was a lawful final offer within section 193(7) of the Housing Act 1996. The Council’s duty under section 193 had consequently come to an end. Both applications were dismissed. The judge encouraged, but could not require, the Council to exercise a humane discretion concerning Ms Heff’s points in exceptional circumstances.