Lemari Minott v Cambridge City Council
| Jurisdiction | England & Wales |
| Judge | Macur LJ,Lewison LJ,Underhill LJ |
| Judgment Date | 18 February 2022 |
| Neutral Citation | [2022] EWCA Civ 159 |
| Docket Number | Case No: CA-2021-000600 |
| Year | 2022 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 159
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE AND PLANNING COURT
Judge Lickley QC (Sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Lewison
and
Lady Justice Macur
Case No: CA-2021-000600
Toby Vanhegan and Stephanie Lovegrove (instructed by GT Stewart Solicitors) for the Appellant
Nicholas Grundy QC and Elizabeth England (instructed by Cambridge City Council) for the Respondent
Hearing date: 26 January 2022
Approved Judgment
Lemari Minott appeals against the order of HHJ Lickley QC, (“the judge”) sitting as a Deputy Judge of the High Court, which dismissed his claim for judicial review of the decision of Cambridge City Council (“CCC”) which refused to accept his second homelessness application on the basis that it revealed no “new facts”. The first instance decision is reported at [2021] EWHC 211 (Admin).
Regardless of the range of submissions made in this appeal, there is a single issue namely: did CCC evaluate the merits of Mr Minott's second application so as to determine whether there was a new fact upon which the “fresh application” was based, and which would trigger CCC's statutory duties pursuant to Part 7 of Housing Act 1996 (“HA 96”)? That is, did CCC elide a two-stage process; identification of whether there was a ‘new fact’ and then evaluation of its merit.
In my judgment, the judge fell into error in endorsing CCC's rejection of Mr Minott's application. The application did reveal a ‘new fact’. The application should have been accepted and then determined accordingly.
Therefore, subject to my Lords, I would allow the appeal for the reasons I give below.
The relevant statutory scheme
Part 7 of the HA 96 specifies the duties of Local Housing Authorities (“LHAs”) to people who make homelessness applications to them (“applicants”).
To summarise so far as is relevant to the issues in this appeal, upon receipt of a homelessness application, an LHA has a duty to make enquiries as to what substantive duty, if any, it owes to the applicant; see s.184(1).
Section 188(1) imposes an interim duty upon an LHA to accommodate an applicant if there is reason to believe that he/she may be homeless, eligible for assistance and have a priority need, pending its inquiries pursuant to s.184. This duty comes to an end if the LHA decides upon conclusion of its inquiries that the applicant does not have a priority need or that it does not owe a duty to assist the applicant under Part 7. However, the duty to provide interim accommodation arises irrespective of any possibility of the referral of the applicant's case to another local housing authority; see ss.198 to 200.
Where an applicant has no local connection with the district of an LHA to which s/he has applied but does have a local connection with another LHA, the recipient LHA may refer the applicant to that other LHA for the performance of any Part 7 duties even before it has determined the substantive duty that is owed to the applicant: see s.198(A1). However, it is possible for an applicant to have a local connection with more than one LHA, in which case the LHA to which they have applied and with which they have a local connection has no power to refer them to another LHA: see s.198(2).
A local connection is defined by section 199 and includes a person's connection with the district of a local authority, “because he is, or in the past was, normally resident there, and that residence is or was of his own choice.”
The Homelessness Code of Guidance 2018 (“the 2018 Code”) was produced pursuant to the powers of the Secretary of State under s.182(2). An LHA in England “shall have regard to such guidance” in the exercise of their functions; see s.182(1).
Section 10 of the 2018 Code deals with issues of local connection and so far as relevant to this appeal provides as follows.
“10.5 … ‘normal residence’ is to be understood as meaning ‘the place where at the relevant time the person in fact resides.’ Residence in temporary accommodation provided by a housing authority can constitute normal residence of choice and can contribute towards a local connection.
10.6 In the case of a person who is street homeless or insecurely accommodated (‘sofa surfing’) the housing authority will need to carry out a different type of inquiry to be satisfied as to their ‘normal residence’ than would be required for an applicant who has become homeless from more settled accommodation. If an applicant has no settled accommodation elsewhere, and from inquiries the authority is satisfied that they do in fact reside in the district, then there will be normal residence for the purposes of the 1996 Act.
10.7 The Local Authorities Agreement suggests that a working definition of normal residence sufficient to establish a local connection should be residence for at least 6 months in an area during the previous 12 months, or for three years during the previous five-year period.
…
10.13 The test regarding local connection, as set out in section 199(1) should be applied, … The fact that an applicant may satisfy one of these grounds will not necessarily mean that they have been able to establish a local connection.
10.14 The overriding consideration should always be whether the applicant has a connection ‘in real terms’ with an area and the housing authority must consider the applicant's individual circumstances, particularly any exceptional circumstances, before reaching a decision.”
The local authority guidelines referred to in section 10.2 of the 2018 Code provide in para. 4.3 (i) that
“… It is suggested that a working definition of “normal residence” should be residence for at least 6 months in the area during the previous 12 months, or for not less than 3 years during the previous 5-year period. The period taken into account should be up to the date of the authority's decision. This should include any periods living in temporary accommodation secured by the authority under s.188 (interim duty pending inquiries);”
Sections 10.13 and 10.14 reflect the decision of the House of Lords in R v Eastleigh BC Ex p Betts [1983] 2 AC 613 in making clear that ‘normal residence’ of whatever length will not necessarily determine “local connection”; see Lord Brightman at p.627, C to E.
Sections 10.5 and 10.6 of the 2018 Code accurately reflects the decision of the House of Lords in Mohamed v Hammersmith and Fulham LBC [2001] UKHL 57, which held that interim accommodation provided by an LHA could, as matter of law, constitute an applicant's normal residence for the purposes of s.199(1)(a): see Lord Slynn of Hadley at paragraphs 17 and 21.
Significantly, Lord Slynn at paragraph 18 of Mohamed re-considered the approach taken to ‘normal residence’ as discussed in R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309, 343, upon which Betts was based, and made clear that “the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides…..and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence”. I agree with Mr Vanhegan, who represents Mr Minott, that Mohamed thereby departs decisively from Lord Brightman's speech in Betts at p.628 B to D which suggests that the definition of normally resident “will take its colour” from residence which is only relevant if it is such as to establish a local connection with the relevant district. R(N) v Lewisham London Borough Council [2015] AC 1259, confirms this change of stance in that Lord Hodge, with whom the majority of the Supreme Court agreed, approved the lesser connotation of the word “residence” as opposed to “dwelling” which suggested a greater degree of settled occupation.”: see paras. 26, 44 and 45.
When a decision to make a referral on the ground of a local connection to another authority is made and communicated to the applicant, the notifying LHA ceases to be subject to the duty to provide interim housing to the applicant unless the LHA believes that s/he may have a priority need, in which case the LHA must secure accommodation for the applicant until notified as to whether the conditions for the referral are met.
If the conditions for a local connection referral are not met, is not accepted by the notified LHA, or otherwise determined in accordance with “such arrangements as the Secretary of State may order”, (see s.198 (5)), then the notifying LHA must resume its duties as appropriate to the applicant's homelessness status.
If it is decided that the conditions are met then the applicant is to be treated as having made their homelessness application to the notified LHA on the date on which notice was given of the referral and from that date, the notifying LHA owes no duties to the applicant: s.199A (5) of HA 1996. Consequently, even if the applicant seeks a review of the decision, the obligation to provide interim accommodation ceases, although the LHA can provide the same in its discretion.
Section 202 gives the applicant a right to request a review of the LHA decision in respect of many notified decisions including as to Part 7 duties owed and referral to another LHA. Section 204 provides a dissatisfied applicant the right to appeal to the County Court on any point of law arising from the decision or the original decision.
However, s.193(9) provides that a person who is unintentionally homeless and eligible for assistance who ceases to be owed the duty by the LHA to secure their accommodation, which may arise after a local...
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