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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Alansi, R (on the application of) v London Borough of Newham [2013] EWHC 3722 (Admin) (27 November 2013)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/3722.html
Cite as: [2014] PTSR 948, [2014] WLR(D) 117, [2013] EWHC 3722 (Admin)

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Neutral Citation Number: [2013] EWHC 3722 (Admin)
Case No: CO/3493/2013

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
27/11/2013

B e f o r e :

THE HONOURABLE MR JUSTICE STUART-SMITH
____________________

Between:
The Queen on the application of Alansi
Claimant
- and -

London Borough of Newham
Defendant

____________________

Liz Davies (instructed by Edwards Duthie Solicitors) for the Claimant
Christopher Baker (instructed by LB of Newham Legal Services Department ) for the Defendant
Hearing dates: 13 November 2013

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Stuart-Smith:

    Introduction

  1. The Claimant challenges the Defendant's decision, dated 23 October 2012 and reaffirmed on 24 December 2012, that she is no longer entitled to be treated as being in the Priority Homeseeker category in the Defendant's allocation scheme which came into force in October 2012. She is now in the Homeseeker category. It is common ground that being in the Homeseeker category rather than the Priority Homeseeker category means that she would have no realistic prospect of being allocated a property under the Defendant's allocation scheme.
  2. The Claimant submits that events which led to her accepting a qualifying offer of an assured shorthold tenancy in the private sector on 19 January 2010 gave rise to her having a substantive legitimate expectation that she should remain in the Priority Homeseeker category and that her removal from that category is an unlawful abuse of power by the Defendant.
  3. Factual Background

  4. In accordance with its statutory obligations, the Defendant has at all material times had in place an allocation scheme, which sets out the mechanism by which the Defendant lets its own properties on secure or introductory tenancies or nominates applicants to private registered landlords. In October 2012 the Defendant implemented a new scheme, in circumstances that will be considered in more detail later. In briefest outline, the Defendant's pre-2012 allocation scheme identified three groups, Priority Homeseekers, Homeseekers and Tenants Seeking Transfer. Vacant properties for permanent accommodation would be advertised and applicants in the Priority Homeseeker group and Tenants Seeking Transfer groups could bid for properties so advertised, with 5% of the advertised properties being the maximum quota that could be let to the group of Tenants Seeking Transfer. In order to qualify for the Priority Homeseeker group an applicant had to satisfy one or more of the "reasonable preference" criteria under s.167 Housing Act 1996.
  5. The Defendant has for a long time suffered from a severe shortage of housing which could be used for permanent accommodation; and it has also been under pressure from central government to reduce the numbers of persons in temporary council accommodation provided pursuant to s.193 Housing Act 1996. One way in which the Defendant has tried to reduce the numbers of persons in temporary accommodation was by what is known as a Bond Scheme. The essence of the Bond Scheme is an arrangement between the Defendant and private landlords whereby the Defendant provides an incentive payment and a bond or deposit so that a household (which would typically be in receipt of benefits) can be granted an assured shorthold tenancy in the private sector. The Bond Scheme is run in conjunction with the Defendant's allocation scheme.
  6. In January 2005 the Claimant made an application for homelessness assistance to the Defendant. At that time she had one child. In February 2005 the Defendant notified the Claimant that it had accepted a duty to ensure that suitable accommodation was made available to her pursuant to s.193 Housing Act 1996. On 21 March 2005 the Defendant granted the Claimant a non-secure tenancy of two bedroom accommodation as temporary accommodation pursuant to its duty under s.193. While the Claimant was living there, her second child was born in December 2005. In April 2006 the Defendant granted the Claimant a non-secure tenancy of a two bedroom flat which was on the second floor of its building, also as temporary accommodation pursuant to its duty under s. 193. Some two years later, in August 2008, the Claimant had the misfortune to be diagnosed with hypermobility syndrome which gave her pains in the joints and made it difficult for her to climb the stairs to her home. She submitted a medical application regarding the suitability of her home because of the stairs.
  7. In September 2008 the Defendant told the Claimant that its medical officer had assessed the medical information that she had submitted and that accommodation would be deemed suitable for her up to the first floor of the building if it did not have a lift and to higher floors with a lift. By implication, this meant that her current accommodation was not suitable. This assessment was confirmed by a letter dated 7 January 2009, by which time the Claimant's third child had been born.
  8. On 7 January 2009 the Defendant also notified the Claimant that she would be nominated to alternative temporary accommodation. Because there was a long waiting list the Defendant proposed that the Claimant should consider opting for the Bond Scheme, under which she would be re-housed quicker. The Defendant wrote that if she was re-housed through the Bond Scheme she would "still retain the right to bid for permanent council accommodation". It is clear on the evidence that the reason why this was said was that, in the event that the Claimant (or any other person in her position) pursued the Bond Scheme and took up a private rented tenancy, the Defendant's duty under s.193 would come to an end and, in the absence of such an assurance, the tenant would lose the right to bid for permanent council accommodation. The right to bid for permanent accommodation was a right which the Claimant had been exercising by bidding previously. She had not yet been successful and, in general, even people entitled to reasonable preference faced a long wait before their bids would be successful. In reality, people not entitled to reasonable preference had no hope of securing permanent council accommodation within any reasonably foreseeable timeframe because of restrictions upon their ability to bid. On the evidence, the Defendant's purpose in giving the assurance that the Claimant would retain the right to bid for permanent council accommodation was to induce her to take up a private rented tenancy; it was an inducement because the prospect (however distant) of obtaining permanent council accommodation is regarded by persons being housed by the Defendant as beneficial, for obvious reasons.
  9. In October 2009 the Claimant contacted the Defendant about the Bond Scheme as she did not want to remain at her current address. She twice signed a declaration attached to documents issued by the Defendant which explained the Bond Scheme. The document stated that if she accepted a qualifying offer under the Scheme the Defendant's duty to ensure that she had accommodation to occupy would come to an end. It also stated that "if you continue to reside in a property you have accepted as a qualifying offer, your application on the Council's Allocations Scheme will not be affected and you will retain you "Priority Homeseeker" status. You can therefore continue to bid for properties which are advertised under Choice Based Lettings." The declaration which she signed stated "I understand that once I sign a tenancy agreement under the Qualifying Offer Scheme, Newham Council will no longer have a duty towards me and my homeless application will be closed. I will continue to bid for permanent accommodation through the Choice Based Lettings and understand that I retain my priority home seeker status."
  10. On 5 January 2010 the Defendant made arrangements for the Claimant to view a three bedroom house which was a private rented property becoming available under the Bond Scheme. On 19 January 2010 the Defendant interviewed the Claimant and informed her (as was recorded in the officer's notes) that if the Claimant accepted the qualifying offer, the homelessness duty would come to an end, but she would retain her Priority Homeseeker status and could continue to bid for permanent accommodation. On the same day, the Claimant signed the assured shorthold tenancy which commenced on 22 January 2010. The Defendant entered into a bond agreement with the landlord, and on 20 January 2010 notified the Claimant that its homelessness duty had come to an end as a result of her acceptance of the qualifying offer of the tenancy. That letter stated "I can confirm that you will retain the Priority Homeseeker status on the council's Allocation Scheme and can continue to bid for properties advertised under Choice Based Lettings."
  11. The Claimant continued to bid for permanent accommodation after moving into what became and is still her present home. Her tenancy was for a fixed term of 12 months, at the expiry of which she held over on an assured shorthold periodic tenancy. The consequence of holding over is that, if the landlord wished, her tenure could be ended by the appropriate service of 2 months' notice. There is no suggestion that her landlord has any present intention of ending her tenure. If her tenure were to be ended she would then have to be reassessed by the Defendant. Unless she had herself brought about the termination of her tenure (e.g. by misconduct of some sort) she should again be assessed as homeless and entitled to benefit of the Defendant's s. 193 duty as amended since 9 November 2012. For present purposes, the main difference between the pre- and post-9 November 2012 s. 193 duty is that the post-9 November 2012 duty may be forfeit if a person either accepts or refuses a suitable offer of a fixed term tenancy. To that extent, if the Defendant were to come under a s. 193 duty to the Claimant again in the future, her position would be less advantageous than if she had never lost the benefit of the pre-9 November 2012 s. 193 duty that the Defendant owed her until she accepted the offer of her present accommodation.
  12. It is clear from the evidence of Ms Anucha, the Defendant's Head of Housing Needs, that there was an established practice whereby the Defendant routinely gave assurances to people who were contemplating the Bond Scheme or who took up a qualifying offer under it in the same terms as were given to the Claimant. The practice was a well known feature, clearly recorded in the documents for each such applicant, but it did not fall within the express terms of the Defendant's allocation scheme. The precise justification for the practice is unclear, though it appears likely that it originated and operated as an exercise of exceptional discretion at officer level which was known and sanctioned by the Defendant as a regular and routine practice in such cases. Ms Anucha's evidence is silent on the reasons why the practice may have grown up, but it appears to be an irresistible inference that the assurances were given as an inducement to persons contemplating the Bond Scheme and who would otherwise have forfeited the Defendant's s. 193 duty to house them and the right to bid for permanent accommodation if they took up a qualifying offer. The fact that the Claimant herself continued to bid for permanent accommodation after she took up her qualifying offer under the Bond Scheme demonstrates that the continuation of the right to bid for permanent accommodation was a right that was regarded by persons in her position as worthwhile.
  13. The legality of the Defendant's allocation scheme was subjected to a challenge that was finally determined in the Defendant's favour by the House of Lords' decision on 4 March 2009 in R v Newham LBC, Ex parte Ahmad [2009] 3 All ER 755. Although the challenge failed, the Defendant decided to review and revise the scheme following and in the light of the House of Lords' decision. The process was managed by Ms Anucha and involved very many discussions between officers and elected members, with the whole process taking more than 3 ˝ years. The Defendant's purpose in introducing its new scheme was to bring it into line with local democratic priorities and also to improve its clarity and transparency; the priority being given to Bond Scheme applicants was included in the overall ambit of the review and change.
  14. Between February and April 2012 the Defendant consulted on the introduction of the new allocation scheme. The Claimant accepts that she would have received a letter notifying her of the consultation and that she could obtain documents setting out what was proposed. She did not take part in the consultation either by obtaining documentation or otherwise. Had she done so, she could have obtained the Defendant's Consultation Document, which referred to the fact that people in her position still had "Reasonable Preference" for social housing regardless of the fact that they were adequately housed and stated that the Defendant proposed to reassess those households' applications, "which may in some cases result in their losing priority."
  15. The Defendant's consultation pack included a working draft of the proposed allocation policy which referred (at 2.2.3) to the position of Bond Scheme applicants (which would include the Claimant) who had "retained discretionary reasonable preference priority." It continued: "As we can now discharge the homelessness duty through the offer of a 12 months assured shorthold tenancy, this discretion will no longer be exercised and existing cases can be reassessed in line with current policy." There was also an Equality Impact Assessment, a draft of which is before the Court. The draft referred (at page 23) to the potential impact of ceasing to afford Reasonable Preference to persons in the Claimant's position, in terms which made plain the prospect of reassessment and cross-referred to section 2.2.3 of the draft revised scheme.
  16. The Report to Cabinet for its meeting on 27 September 2012 included the Equality Impact Assessment. Although that document is not before the Court, it is reasonable to infer that it was probably in substantially the same terms as the draft. The Report to Cabinet did not otherwise refer to the practice of which the Claimant had been the beneficiary or to the proposal to discontinue it and to reassess persons such as the Claimant in accordance with current criteria. Cabinet approved the adoption of the new allocation scheme.
  17. By the time that the new scheme was adopted, central government Guidance for Local Housing Authorities in England (2012) had been issued, which included reference in the Ministerial Forward to the central government policy of giving priority when allocating social housing "to those who genuinely need them" including, specifically, "hardworking families and those who are looking to adopt or foster a child in need of a stable family" and those entitled to the benefit of the Military Covenant. It described the change in policy effected by the Localism Act 2011 as "the most radical reform to social housing for a generation." Central government priorities were reflected in the Defendant's new scheme by increasing the number of sub-categories of persons entitled to bid for housing to seven, with first priority being given to members or former members of the Armed Forces who satisfy certain criteria, and those in the Priority Homeseeker or Transfer groups who are in employment being given preference over those who are not (other things being equal).
  18. On 23 October 2012 the Defendant wrote to the Claimant, referring to the fact that she had been awarded Reasonable Preference when she was placed in the Bond Scheme property, the process of consultation and the adoption of the new scheme. The Defendant told the Claimant that she would now be assessed as a Homeseeker and not as having Reasonable Preference. It informed her that she could seek a review of its decision and invited her to submit relevant information. The Claimant responded on 1 November 2012 referring to her status as a single mother of four children with a medical condition. She did not refer to the assurances she had been given. On 24 December 2012 the Defendant affirmed its decision of 23 October 2012. These proceedings challenge those decisions.
  19. Legitimate Expectation - the Applicable Principles

  20. The Claimant submits that the Defendant's statements that she would retain Priority Homeseeker status gave rise to a legitimate expectation on her part such that its subsequent resiling from what it had previously said amounts to an unlawful abuse of power.
  21. "Clear, unambiguous and devoid of relevant qualification"

  22. It is common ground that a ruling or statement relied upon to found a legitimate expectation must be "clear, unambiguous and devoid of relevant qualification": see R v IRC Ex p MFK Underwriting [1990]1 WLR1545, 1569G per Bingham LJ. Mr Baker submitted on behalf of the Defendant that when considering the meaning of statements that are relied upon as founding a legitimate expectation the Court should adopt the same approach to language as that identified by Lord Hoffmann in ICS v West Bromwich BS [1998] 1 WLR 896 as appropriate when interpreting contract documents, namely:
  23. "Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract."
  24. I do not accept that the approach that is appropriate when interpreting contractual documents prepared by persons who are intent on entering into contractual relations is directly transferable to the interpretation of statements by public bodies that are said to give rise not to a contract but to legitimate expectation. The law of contract assumes a measure of equality which makes it appropriate to adopt the objective view of the hypothetical "reasonable person", though even when interpreting contracts the objective approach to the understanding of the reasonable person takes into account the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. It is necessary to recognise that, where a public body makes statements to an individual, there can be no assumption of equality and it is what the individual will understand that matters. For that reason, the approach to interpretation of statements that are said to give rise to a legitimate expectation is more closely analogous to the approach to be adopted when considering the meaning and quality of advice given by professionals to their clients. The facts of this case provide a clear illustration of why this should be so. It is accepted that the Claimant is typical of persons to whom the Defendant may owe a duty under s. 193. While the Court has no knowledge of her early life or education, it is apparent that she is not originally of English ethnicity religion or culture; she is not in employment; and the Court was told that she had limited understanding of English - her witness statement stated that a solicitor had read it over and explained it to her, which tends to confirm this information. While English law may assume that all subjects are aware of the law, it is (as was accepted by Mr Baker) quite unrealistic to assume that the Claimant (or persons in her position generally) will have any detailed understanding of the labyrinthine provisions of housing law in general or of the Defendant's schemes in particular; this is reflected in the steps taken by the Defendant to record that certain matters are explained to applicants, but it is obvious that such explanations are no substitute for detailed understanding. Similarly, there is no reason to assume that applicants will be aware of the fact that policies may change or how that change may be effected.
  25. What I would accept is that an element of objectivity is to be adopted in interpreting the statements made by public authorities upon the basis of which it is alleged that legitimate expectation has arisen. As appears below, reliance and acting to a person's detriment may be material when assessing whether an authority's subsequent actions amount to an unlawful abuse of power. That being so, it would not be acceptable for an individual to be allowed to rely upon an interpretation that was irrational or capricious for her given her background knowledge and understanding. I would therefore modify the ICS test as follows: the Court should ascertain the meaning which the Defendant's statements would reasonably convey to the Claimant in the light of all the background knowledge which she had in the situation in which she was at the time that the statements were made.
  26. The Categories of Legitimate Expectation

  27. In R v Newham LBC ex parte Bibi [2002] 1 WLR 237, Schiemann LJ drew attention to the wide-ranging meanings that may be attributed to the words "legitimate expectation" and defined the exercise upon which the Court is engaged in the present case when he said at [18-19]
  28. "18 The case law is replete with words such as "legitimate" and "fair", "abuse of power" and "inconsistent with good administration". When reading the judgments care needs to be taken to distinguish analytical tools from conclusions which encapsulate value judgments but do not give any indication of the route to those conclusions.
    19 In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or by promise, committed itself; the second question is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do. This formulation of the questions is we think a more helpful way of approaching the problems in this type of case than the fivefold question adopted during argument. …"
  29. In R v Secretary of State for the Home Department ex parte Nadarajah [2005] EWCA Civ 1363 at [67], Laws LJ emphasised that failing to honour a promise is not of itself enough, and that the search for a principled approach is not satisfied merely by the use of catch phrases:
  30. "I think it superficial to hold that for a legitimate expectation to bite there must be something more than failure to honour the promise in question, and then to list a range of possible additional factors which might make the difference. It is superficial because in truth it reveals no principle. Principle is not in my judgment supplied by the call to arms of abuse of power. Abuse of power is a name for any act of a public authority which is not legally justified. It is a useful name, for it catches the moral impetus of the rule of law. It may be, as I ventured to put in Begbie, "the root concept which governs and conditions our general principles of public law". But it goes no distance to tell you, case by case, what is lawful and what is not."
  31. It is clear on the authorities that there are different categories of case that are included under the umbrella of "legitimate expectation". A non-exhaustive categorisation was provided by Simon Brown LJ in R v Devon County Council, ex parte Baker [1995] 1 All ER 73, 88-89, where he pointed out that different categories of case may call for a different approach from the Court:
  32. "It is first, I think, convenient to identify, at least in broad categories, various of the distinct senses in which the phrase 'legitimate expectation' is nowadays used.
    (1) Sometimes the phrase is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him. It was used in this sense and the assertion upheld in cases such as R v Secretary of State for the Home Dept, ex p Khan [1985] 1 All ER 40, [1984] 1 WLR 1337 and R v Secretary of State for the Home Dept, ex p Ruddock [1987] 2 All ER 518, [1987] 1 WLR 1482. … These various authorities show that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it is reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duty imposed upon it. The doctrine employed in this sense is akin to estoppel. In so far as the public body's representation is communicated by way of a stated policy, this type of legitimate expectation falls into two distinct sub-categories: cases in which the authority are held entitled to change their policy even so as to effect the claimant, and those in which they are not. …
    (2) Perhaps more conventionally the concept of legitimate expectation is used to refer to the Claimant's interest in some ultimate benefit which he hopes to retain (or, some would argue, attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation. In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness; the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision. …
    (4) The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice."
  33. In R v Education Secretary ex parte Begbie [2000] 1 WLR 1115, 1130-1131 and subsequently, Laws LJ pointed out that these categories "are not hermetically sealed" and that the facts of each case, viewed in their statutory context, "will steer the Court towards a more or less intrusive quality of review."
  34. The Test to be Applied

  35. It is now well established is that where a Claimant is relying upon a promise or representation by a public authority as giving rise to a substantive right, the Court will not be limited to a Wednesbury irrationality challenge, but will be required to consider whether the public authority has struck the correct balance between the public interest and the interests of the Claimant. In doing so, it will ask whether the public authority has shown there to be an overriding public interest that justifies departing from the assurance that has been given. Thus in R v North and East Devon HA, Ex parte Coughlan [2001] QB 213, where the Health Authority decided to close a residential facility for the severely disabled having previously assured the applicant that it would be his home for life, the Court of Appeal said at [57 - 59]:
  36. "(c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of an expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy
    In the case of the third[1], the court has when necessary to determine whether there is sufficient overriding interest to justify a departure from what has been previously promised …
    Nevertheless, most cases of an enforceable expectation of a substantive benefit (the third category) are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract."
  37. Developing this principle, in Nadarajah at [68-69] Laws LJ said:
  38. "Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.
    Accordingly a public body's promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body's legal duty or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the Judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.
    This approach makes no distinction between procedural and substantive expectations. Nor should it. The dichotomy between procedure and substance has nothing to say about the reach of the duty of good administration. Of course there will be cases where the public body in question justifiably concludes that its statutory duty (it will be statutory in nearly every case) requires it to override an expectation of substantive benefit which it has itself generated. So also there will be cases where a procedural benefit may justifiably be overridden. The difference between the two is not a difference of principle. Statutory duty may perhaps more often dictate the frustration of a substantive expectation. Otherwise the question in either case will be whether denial of the expectation in the circumstances proportionate to a legitimate aim pursued. Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in the case. Thus where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. They are included in Mr Underwood's list of factors, all of which will be material, where they arise, to the assessment of proportionality. On the other hand where the government decision-maker is concerned to raise wide-ranging or "macro-political" issues of policy, the expectation's enforcement in the courts will encounter a steeper climb. All these considerations, whatever their direction, are pointers not rules. The balance between an individual's fair treatment in particular circumstances, and the vindication of other ends having a proper claim on the public interest (which is the essential dilemma posed by the law of legitimate expectation) is not precisely calculable, its measurement not exact."
  39. It is clear from [69] of Nadarajah that a person who asserts that a promise or representation has given rise to a substantive right may rely upon either substantive or procedural unfairness. This is also apparent from Coughlan at [52] and Bibi at [39] and [49].
  40. When considering whether the decision of a public authority to resile from an earlier promise or assurance is or is not unlawful, the tension between the public interest and the effect of the decision upon a particular individual is to be balanced having regard to the role and obligation of the public authority in formulating and implementing policy and, as such, as an agent of change. This has been articulated and developed in a number of binding authorities. In R v Secretary of State for Education and Employment, Ex parte Begbie [2000] 1 WLR 1115, 1130-1131, Laws LJ said:
  41. "In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker which they cannot wear….
    As Wade and Forsyth observe (Administrative Law, 7th Ed. (1994), p. 404):
    "Ministers' decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional cases, not to pass judgment on action which is essentially political"
    In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in the Coughlan case [2001] 2 W.L.R 622 that few individuals were affected by the promise in question. The case's facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court's condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power."
  42. In Bibi, the Court of Appeal addressed the same tension at [24]:
  43. "As Professor Craig makes clear in his perceptive discussion of this topic in Craig, Administrative Law, 4th Edition (1999), ch 19, it is important to recognise that there is often a tension between several values in these cases. A choice may need to be made as to which good we attain and which we forego. There are administrative and democratic gains in preserving for the authority the possibility in the future of coming to different conclusions as to the allocation of resources from those to which it is currently wedded. On the other hand there is a value in holding authorities to promises which they have made, thus upholding responsible public administration and allowing people to plan their lives sensibly. The task for the law in this area is to establish who makes the choice of priorities and what principles are to be followed."
  44. When considering the role of central government, the Court of Appeal identified the reasons why considerable respect must be given to the ability of public authorities to change the direction of policy in R v The Independent Assessor, Ex parte Bhatt Murphy [2008] EQWCA Civ 755. At [41], Laws LJ (with whom the other members of the Court agreed) said:
  45. "There is first an overall point to be made. It is that both these types of legitimate expectation are concerned with exceptional situations (see Lord Templeman in Preston at 864; compare ABCIFER [2003] QB 1397 per Dyson LJ at paragraph 72). It is because their vindication is a long way distant from the archetype of public decision–making. Thus a public authority will not often be held bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon. Nor will the law often require such a body to involve a section of the public in its decision-making process by notice or consultation if there has been no promise or practice to that effect. There is an underlying reason for this. Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in what Sedley LJ described (BAPIO [2007] EWCA Civ 1139 paragraph 43) as the entitlement of central government to formulate and re-formulate policy. This entitlement - in truth, a duty - is ordinarily repugnant to any requirement to bow to another's will, albeit in the name of a substantive legitimate expectation. It is repugnant also to an enforced obligation, in the name of a procedural legitimate expectation, to take into account and respond to the views of particular persons whom the decision-maker has not chosen to consult."
  46. It might at first blush be expected that a Claimant who asserts what amounts to a substantive right on the basis that a public authority's representation or assurance has given rise to a situation akin to estoppel or contract would have to show reliance upon the authority's statement and either detriment or at least some change in position. Such an approach could be supported by Simon Brown LJ's reference in Baker to a representation "upon which it is reasonable to rely" However, this is not so, though the existence of reliance and detriment will be factors to take into account when considering whether the balance struck by the public authority is lawful or is an unlawful abuse of power. In Begbie at 1124 Peter Gibson LJ provided the explanation:
  47. "… it is not necessary for a person to have changed his position as a result of such representations for an obligation to fulfil a legitimate expectation to subsist; the principle of good administration prima facie requires adherence by public authorities to their promises. … I would however add a few words by way of comment … as in my judgment it would be wrong to understate the significance or reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation." [Emphasis added]
  48. On the same point, in Bibi at [31] the Court of Appeal said:
  49. "In our judgment the significance of reliance and of consequent detriment is factual, not legal. In Begbie's case both aspects were in the event critical: there had been no true reliance on the misrepresentation of policy and therefore no detriment suffered specifically in consequence of it. In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation."
  50. Finally, it is to be remembered that affording priority under a housing allocation scheme does not guarantee that a person will ever be allocated Part VI housing and that a right to be considered pursuant to an allocation scheme is not the same as (and does not give rise to) a right to be allocated a house: see R v Barnet LBC Ex parte Lin [2007] EWCA 132 at [25] and Ahmed at [12].
  51. Without derogating in any way from the statements of applicable principle set out above, I attempt to summarise the main points as follows:
  52. i) Where a person asserts a legitimate expectation to enforce what amounts to a substantive right based upon a promise or assurance by a public authority, the authority's statement must be clear, unambiguous and devoid of relevant qualification;

    ii) Where a public authority has made statements to an individual that are said to give rise to a legitimate expectation, the Court should ascertain the meaning which the authority's statements would reasonably convey to that person in the light of all the background knowledge which he or she had in the situation in which he or she was at the time that the statements were made;

    iii) Where a person is relying upon a promise or representation by a public authority as giving rise to a substantive right, the Court will not be limited to a Wednesbury irrationality test but will be required to consider whether the public authority has struck the correct balance between the public interest and the interests of the person relying on the promise or representation;

    iv) The test to be applied is whether frustrating the Claimant's expectation is so unfair that to take a new and different course will amount to an abuse of power. Once the expectation has been established, the court must weigh the requirements of fairness against any overriding interest relied upon for the change of policy. Both procedural and substantive unfairness may be taken into account when applying this test;

    v) Reliance and detriment are not essential pre-requisites to a finding of unlawful abuse of power but their presence (or absence) may be taken into account in deciding where the balance of fairness lies and whether the authority has acted unlawfully;

    vi) The Court should give due weight to the proper role of public authorities as agents of change and as being responsible for the adoption and implementation of policies that are in the public interest even though they may conflict with the interest of private individuals, including those to whom assurances have been given;

    vii) Being afforded priority under a housing allocation scheme is no guarantee of being awarded permanent accommodation either at all or within any particular timescale.

    Discussion

  53. When considering whether the assurances given to the Claimant were clear, unambiguous and devoid of relevant qualification, the first thing to note is that the Defendant could have included a statement that the promise was qualified by the reservation of a right to withdraw it in the event the Defendant wished to change its housing allocation policy in the future; but it did not do so. It is therefore necessary that the Claimant should reasonably have understood that such a qualification was implicit, if such a qualification is to be imported at all. As I have already indicated, the assurances were given to an unsophisticated member of the public who is accepted as being typical of the persons to whom such assurances were routinely made when they took up a qualifying offer under the Bond Scheme. There is no evidence that the Claimant had any special knowledge or professional understanding of when and in what circumstances the Defendant might change its housing allocation policy and there is no reason to assume that she had any. Had she been more sophisticated or knowledgeable and had she made enquiries, she may have discovered that the assurance she was given was outside the express terms of the current allocation scheme and was an exceptional exercise of discretion, albeit that it was sanctioned by the Defendant as a regular procedure in such circumstances. The fact that she was being treated exceptionally would, if anything, have tended to support an understanding that she was in a special category and that the promise might therefore not be dependent upon the terms of the formal policy from time to time.
  54. There is an additional reason for not accepting that a qualification should be imported by reference to future changes in policies, which is that the assurance given in October 2009 was that she would retain her Priority Homeseeker status "if you continue to reside in a property you have accepted as a qualifying offer." This assurance was inconsistent with an implied right to withdraw the promise on any general change of policy because it was an express assurance that the retention of her Priority Homeseeker status would continue for as long as she continued to reside in the accommodation she obtained under the Bond Scheme, which might readily continue after any changes in policy were introduced.
  55. I therefore conclude that the representations and assurances made by the Defendant to the Claimant were clear and unambiguous and were to the effect that she would retain Priority Homeseeker status and would be entitled to bid for permanent accommodation without limitation as to time except that her entitlement would continue while she remained in occupation of property that she had obtained as a result of accepting a qualifying offer. It is, however, important to note what the assurances did not say. First, nothing in the assurances bound the Defendant to make no change at all to the categories of persons who would be entitled to bid or who would be included in the category of Priority Homeseekers. Hence, nothing in the assurances bound the Defendant not to alter the priorities afforded to different sub-categories of persons within the overall Priority Homeseekers category. It was therefore open to the Defendant without infringing the assurances it had given the Claimant to act so as to downgrade her categorisation and the level of priority afforded to her, provided that she remained in the overall Priority Homeseekers category. This imposed an effective limitation on any legitimate expectation that she might otherwise have had: she could not complain if her level of priority within the Priority Homeseekers category was altered, even if the effect of the alteration was that her prospects of obtaining permanent housing were significantly reduced.
  56. This limitation is important because there was debate at the hearing about what the Claimant's precise prospects were as a Priority Homeseeker under the old scheme and what they would have been under the new one. Under the old scheme the average waiting time before a person might get permanent accommodation was about 12 years. However, this average time included the average of all who were entitled to bid and therefore included those who would be high priority cases and who would spend much less that 12 years before obtaining permanent accommodation. It follows that there were others who were lower down the priority ladder who would not be successful (if at all) until waiting longer than 12 years. There is no direct evidence to show how long the Claimant would have had to wait: the only evidence is that she had not come near to being successful despite many applications over the years. The evidence does not justify a conclusion that she was likely to be successful in or by 2017 or by any particular date. Similarly, under the new scheme of priorities introduced under the new scheme, there is no evidence that justifies a finding of when, if at all, she would have been successful, although the implication of the new priorities is that her prospects would have been adversely affected under the new scheme when compared with her prospects under the old.
  57. My finding about the clear and unequivocal meaning of the Defendant's assurances to the Claimant means that the Defendant's decision to remove her from the category of Priority Homeseekers with a right to bid for permanent accommodation involved resiling from the assurances. On the principles that I have outlined above, that was prima facie unreasonable and requires justification.
  58. It is clear on authority and on the evidence that the provision of housing is a key concern of local authorities. In Huang v SSHD [2007] UKHL 11 at [17] Lord Bingham emphasised the influence of competing interests in central government's formulation of housing policy:
  59. "Domestic housing policy has been a continuing subject of discussion and debate in Parliament over very many years, with the competing interests of landlords and tenants fully represented, as also the public interest in securing accommodation for the indigent, averting homelessness and making the best use of finite public resources. The outcome, changed from time to time, may truly be said to represent a considered democratic compromise."
  60. Equally, for local authorities in general and the Defendant in particular, limited supply, heavy demand, and central government pressure makes the allocation of housing a core political policy area. The Defendant's aims of providing suitable housing for as many people as possible and prioritising the allocation of housing to those that really need it provided a clear rationale for wishing to adjust its policy to those, like the Claimant, who are suitably housed already. What has happened is that the Defendant has changed its policy in a political climate for housing that has been altered by central government in material respects by the Localism Act 2011 and its guidance to local authorities. The Defendant's objectives, as evidenced by Ms Anucha, are proper policy objectives and there is now no criticism of or challenge to the process of consultation that the Defendant adopted before introducing its new scheme.
  61. On one view, the change in priority afforded to those who accepted qualifying offers under the Defendant's Bond Scheme affects just short of 400 people who have been identified as being in the same category as the Claimant; but if and to the extent that they have lost something of value as a result of the change in policy, all those who would otherwise have been below them on the priority ladder but have now moved up have also been affected. So although each person in the same position as the Claimant relies upon individual assurances, the overall numbers of people affected by the Defendant's previous practice is significant. Thus, although this case does not involve "macro-politics" to the same extent as some decisions of central government, it is firmly within the sphere of political policy affecting significant numbers of people (and, for example, many more than were affected by the impugned decision in Coughlan).
  62. It is right to take into account the fact that the assurances given to the Claimant and others in her position were given individually rather than being set out in policy documents. As I have already noted, if the Claimant had engaged in sophisticated analysis of what was happening, she might have regarded the fact that she received an individual assurance as material. There is no suggestion that she did so, and in general this point can be overstated. The fact of giving an assurance is not of itself determinative of the outcome of cases such as the present, and it is relevant to consider what the position would have been if the Defendant's practice of affording priority to those who accepted qualifying offers under the Bond Scheme had been incorporated into its formal policy documents rather than growing up as a regular exercise of officer discretion. The formal policy documents may have stated clearly and unambiguously that persons accepting qualifying offers would retain the right to bid for permanent housing. Such statements could be characterised as being at large, because they were made to anyone who read the policy, but they would be acted upon individually by anyone who, relying upon the policy statements, was influenced to take up a qualifying offer. To my mind, the fact that the assurances were given in standard documents that stood outside the formal terms of the Defendant's policy should make little difference when considering whether the Defendant's change of position amounts to an unlawful abuse of power. Had the statements been incorporated in formal policy documents, I consider that it would be difficult or impossible to argue that their incorporation bound the Defendant not to introduce any change that acted adversely to the interest of those who had taken up qualifying offers in the past; yet that is essentially what the Claimant seeks to establish in this case.
  63. Viewed more generally, the Defendant's submission that those who are suitably housed in private accommodation under the Bond Scheme do not have a pressing need that justifies them being given preference is rational and, but for the assurances that had been given, unexceptional; and the Defendant built in additional safeguards by providing for affected persons to have a right to call for a review of their individual cases. The Claimant took advantage of that right. The point is made that she did not rely upon the fact of assurances having been made to her when waiting for her case to be reviewed; but that point loses its force when it is remembered that the Defendant must have been aware that it had initiated the change in her status precisely because her status was originally founded on assurances made when she accepted the qualifying offer under the Bond Scheme.
  64. The Claimant asserts that she relied upon the assurances and has suffered detriment. The Defendant did not apply to cross-examine her, as it could have done if it had wished to mount a substantial challenge to her evidence. I am confident that she did rely upon the assurances that were made to her. Apart from her evidence that she did so, I have found that the assurances were given with the intention that they should be relied upon as an inducement to the Claimant (and others like her) to accept qualifying offers of private sector accommodation under the Bond Scheme. What is more, she had bid for permanent accommodation before accepting the qualifying offer and did so again in the period after moving to her present accommodation, which shows that she considered the assurance and acted on the basis of it. As a final pointer towards reliance, when she was informed of the change in policy, she requested that the decision affecting her be reviewed and, ultimately, issued these proceedings to challenge it. There is, in my judgment, no substantial basis for an argument that she did not rely upon the assurances.
  65. The question of detriment is more complicated. By accepting the qualifying offer the Claimant lost the position she would otherwise have retained on the Defendant's housing ladder. The Defendant ceased to be under a s. 193 duty to her and she lost her right to bid for permanent accommodation under the allocation scheme, thereafter having rights only as a result of the assurances she had been given. However, the results of accepting the qualifying offer were not all detrimental because she obtained suitable temporary accommodation sooner than she would otherwise have done. This benefit requires to be taken into account when measuring the overall detriment that she says she has suffered.
  66. The specific detriments require closer analysis. Although she lost the benefit of the pre-9 November 2012 s. 193 duty, she did so in circumstances where she had been placed in suitable accommodation with at least some security of tenure, as described above. Also, if she were to become homeless in the future, the Defendant would again owe her a s. 193 duty, unless she had been responsible for her becoming homeless. While the duty is not congruent with the pre-9 November 2012 s. 193 duty, if she were in the future to forfeit the benefit of being owed the duty by refusing suitable accommodation, her refusal would be the direct cause of her losing the benefit of the duty. The speculative possibility of this detriment seems more theoretical than real, particularly when there is presently no indication of a real risk that she may lose her present home.
  67. The second aspect of detriment if she were to become homeless again is that she has lost the accrued time that she had been on the priority ladder. Again, while it is easy to conceive this as a theoretical detriment, it must be seen in context: she was never guaranteed the right to obtain permanent accommodation, and there is no reason to suppose that she would have obtained permanent accommodation in or about 2017 or within any reasonable time frame, particularly after the Defendant introduced the new sub-categories of prioritisation which would have put her in the last of the seven sub-categories. On the evidence, what she has lost is no more than the possibility that she might at some indeterminate future date be successful in obtaining permanent council accommodation.
  68. Drawing these strands together, I consider that the practice of offering assurances to persons considering accepting qualifying offers was effectively an element of the Defendant's allocation policy, even though it was not formally recorded in it. Whether it is viewed as part of the policy or as an adjunct to it, it was in the area of political policy making that is a primary function of local authorities such as the Defendant, who are required to take into account both local and national interests and considerations when deciding where to strike the balance of fairness for all those who look to the local authority to provide them with suitable housing. It is therefore within the area where the Court should be cautious before substituting its own judgment for that of the democratically elected local authority about what is the appropriate balance to strike and when and to what extent it is proportionate to affect individual interests adversely in striking that balance. Although the mechanism by which the policy was implemented was by individual assurances and the Claimant can point to at least theoretically detrimental consequences to her that flow from the Defendant resiling from its assurances, she also received benefits from acting on the assurances she was given; and the effects of this policy shift are more clearly in the "macro" area of political policy making than, for example, the impugned decision in Coughlan. When the Defendant proposed to change its policy, it considered at length and consulted appropriately before implementing change; and, when it did so, it offered individual reviews to those who were adversely affected. No criticism is or could reasonably be made of the procedure and safeguards adopted by the Defendant.
  69. Conclusion

  70. Attempting to balance all of the principled considerations indicated by the authorities to which I have referred, I conclude that the Defendant has succeeded in displacing the prima facie finding that its conduct was unreasonable. To my mind it would be wrong to characterise the Defendant's conduct as being an unlawful abuse of power. It is better characterised as a proportionate response to a pressing and widespread social problem which struck a proper balance between the competing claims of many different interests. In my judgment, therefore, the Claimant's claim fails.

Note 1   I.e. the third catgory i.e. category (c) referred to immediately above.    [Back]


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