Johnston v City of Westminster

JurisdictionEngland & Wales
JudgeLady Justice Gloster,Mr Justice Blake,Lord Justice Sullivan
Judgment Date03 June 2015
Neutral Citation[2015] EWCA Civ 554
Date03 June 2015
Docket NumberCase No: B5/2015/0421
CourtCourt of Appeal (Civil Division)

[2015] EWCA Civ 554

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT CENTRAL LONDON

HIS HONOUR JUDGE MITCHELL

A40CL105

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Sullivan

Lady Justice Gloster

and

Mr Justice Blake

Case No: B5/2015/0421

Between:
Johnston
Appellant
and
City of Westminster
Respondent

Mr Martin Russell (instructed by Moss Beachley Mullem & Coleman) for the Appellant

Mr David Warner (instructed by City of Westminster) for the Respondent

Hearing dates: Wednesday 18 th March 2015

Lady Justice Gloster

Introduction

1

This is a (second) appeal by Mr John Johnston ("Mr Johnston") against a decision of the respondents, Westminster City Council ("Westminster" or "the Council") made on 28 May 2014 pursuant to section 202 of the Housing Act 1996 ("the 1996 Act"). By that decision Westminster determined that Mr Johnston was not homeless within the meaning of section 175 of the 1996 Act. That decision was upheld by HHJ Mitchell in a judgment dated 3 December 2014 but handed down on 29 January 2015. On 25 February 2015 Lewison LJ granted Mr Johnston permission to appeal on the papers.

The principal relevant provisions of the Act

2

Section 175 of the Act so far as material provides as follows:

" Homelessness and threatened homelessness

(1) A person is homeless if he has no accommodation available for his occupation, whether in the UK or elsewhere, which he

(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,

(b) has an express or implied licence to occupy, or

(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.

…….

(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy…"

3

Section 198 of the Act so far as material provides as follows:

" Referral of case to another local housing authority."

(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.

(2) The conditions for referral of the case to another authority are met if—

(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,

(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, and

(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district."

4

Section 200 of the Act so far as material provides as follows:

" Duties to applicant whose case is considered for referral or referred."

(1) Where a local housing authority notify an applicant that they intend to notify or have notified another local housing authority of their opinion that the conditions are met for the referral of his case to that other authority—

(a) they cease to be subject to any duty under section 188 (interim duty to accommodate in case of apparent priority need), and

(b) they are not subject to any duty under section 193 (the main housing duty), but they shall secure that accommodation is available for occupation by the applicant until he is notified of the decision whether the conditions for referral of his case are met.

(2) When it has been decided whether the conditions for referral are met, the notifying authority shall notify the applicant of the decision and inform him of the reasons for it.

The notice shall also inform the applicant of his right to request a review of the decision and of the time within which such a request must be made.

(3) If it is decided that the conditions for referral are not met, the notifying authority are subject to the duty under section 193 (the main housing duty).

(4) If it is decided that those conditions are met, the notified authority are subject to the duty under section 193 (the main housing duty).

(5) The duty under subsection (1) ceases as provided in that subsection even if the applicant requests a review of the authority's decision (see section 202).

The authority may secure that accommodation is available for the applicant's occupation pending the decision on a review."

Factual Background

5

Mr Johnston is a single man of 50 years of age. For 7 years from 2004 until 2011 he lived in Eastbourne. In early 2011 he had to leave his rented property in Eastbourne because the landlord required it to be returned. Mr Johnston came to London because, he says, he felt harassed and intimidated in Eastbourne. He started sleeping on the streets in Victoria.

6

On 9 August 2011 he applied to Westminster for homeless assistance under Part 7 of the 1996 Act. On 1 November 2011 the Council wrote to Mr Johnston accepting that he was homeless, eligible for assistance, had priority need for housing, and had not become homeless intentionally but, stating that it had decided that he had no local connection with Westminster but did have a local connection with Eastbourne Borough Council ("Eastbourne"), Westminster informed him that that his application was being referred to Eastbourne under section 198 of the Housing Act 1996. On 28 October 2011 Westminster duly referred the application to Eastbourne, but the referral was only accepted by Eastbourne on 4 March 2013. Mr Johnston was provided by Westminster with temporary accommodation pending Eastbourne's consideration of the matter.

7

On 6 March 2013, pursuant to section 200 of the Act, Westminster wrote to Mr Johnston to inform him of the fact that Eastbourne had accepted a housing duty towards him and that accordingly Westminster's housing duty towards him had come to an end. The letter stated:

".. following our referral of 28 th October 2011, Eastbourne.. has accepted a housing duty towards you. Our housing duty has therefore come to an end."

The letter went on to state that accordingly Westminster intended to stop providing him with temporary accommodation on 12 March 2013. On 27 March 2013 Mr Johnston sought a statutory review of the decision to refer.

8

That request for a review led to a review decision on 24 May 2013 which was subsequently withdrawn and substituted with a review decision dated 14 June 2013. That decision upheld the original decision that Mr Johnston had no local connection with Westminster, but that he did have a connection with Eastbourne. It also concluded that Mr Johnston would not be at risk of violence in Eastbourne and that accordingly the conditions for a referral to Eastbourne under section 198 had been met. That decision was the subject of a statutory appeal under section 204 of the 1996 Act which was dismissed by HHJ Faber on 10 October 2013.

9

Mr Johnston then applied for permission to appeal that dismissal of his appeal to this court. However, that application for permission to appeal was compromised on the terms set out in a consent order of this court dated 26 February 2014. That order recited that:

"Upon the Respondents having agreed to accept a fresh application from the Appellant under section 183 of the Housing Act 1996

IT is ordered by consent

1. The Appellant seeks to withdraw his application for permission to appeal which stands dismissed without further formality".

We shall have to consider in greater detail below whether, by implication, and as suggested in oral argument by Mr Martin Russell, who appeared on behalf of Mr Johnston, there were any further terms of the compromise.

10

The same day, 26 February 2013, Mr Johnston lodged a new application under Part 7 of the 1996 Act. Westminster issued its fresh decision letter on 27 February 2014. This time the ground for refusal was not expressly that Westminster's duty had been discharged pursuant to section 200(1) and that the referral to Eastbourne still stood, but rather, that in the light of Eastbourne's willingness to continue to accept Westminster's referral, Mr Johnston was not homeless for the purposes of section 175 of the Housing Act 1996 because Eastbourne had accepted a full housing duty towards him and, if he applied to Eastbourne, he would be accommodated by them somewhere. The relevant paragraphs of the letter were as follows:

"As you are not homeless, we have no duty to find you a home and we cannot offer you somewhere to live.

We believe you are not homeless because Eastbourne have accepted a full housing duty towards you and are prepared to provide you with temporary accommodation until you secure permanent accommodation in Eastbourne.

You made a homeless application to Westminster Council on 6 th July 2012. We accepted that you were owed a full housing duty. However this duty was owed to you by Eastbourne Council due to you having a local connection with Eastbourne.

You requested a review of this decision on 27 th March 2013. Our decision to refer you to Eastbourne was upheld by our reviews department on 22 nd May 2013.

We received an e-mail from the manager at Eastbourne's homeless person unit (Michael Feely) on 4 th March 2013 advising us that Eastbourne have accepted a duty towards you and will provide you with accommodation.

You re-approached Westminster Council on 26 th February 2014 asking to make a fresh homeless application. As part of our enquiries we contacted Eastbourne Council and spoke to Michael Feely....

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