London Borough of Tower Hamlets v Deugi
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lord Justice Rix,Lord Justice Gage |
| Judgment Date | 07 March 2006 |
| Neutral Citation | [2006] EWCA Civ 159 |
| Docket Number | Case No: B2/2005/1223 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2006 |
[2006] EWCA Civ 159
The Rt Hon. Lord Justice May
The Rt Hon. Lord Justice Rix and
The Rt Hon. Lord Justice Gage
Case No: B2/2005/1223
4B054860
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOW COUNTY COURT
HIS HONOUR JUDGE ROBERTS
Royal Courts of Justice
Strand, London, WC2A 2LL
Ashley Underwood QC and Genevieve Screeche-Powell (instructed by London Borough of Tower Hamlets) for the Appellant
Jon Holbrook (instructed by Sternberg Reed Taylor & Gill) for the Respondent
Lord Justice May
Facts
On 13 th February 2000, Hemlata Deugi, the respondent, who is an Indian national, came to the United Kingdom with her two children, Sunaina, born on 16 th August 1981, and Vishal, born on 22 nd October 1986. They lived with her husband, the childrens' father, Mr Deugi in Morecambe. He held a Portuguese passport.
In about May 2000, Mrs Deugi and her children left the home in Morecambe. In June 2000, she applied to Tower Hamlets London Borough Council, the appellant, for housing assistance on the basis that she was homeless. Tower Hamlets initially housed them under the Housing Act 1996. In September 2000, Tower Hamlets decided to house them and provide them with subsistence under the National Assistance Act 1948 and the Children Act 1989. On 27 th October 2000, Mr and Mrs Deugi divorced.
By December 2003, Tower Hamlets were looking to withdraw the support they were providing. On 12 th December 2003, solicitors acting for Mrs Deugi requested assistance for her under the Housing Act 1996. There was a question about her eligibility for assistance, because she might have been ineligible under section 185(1) of the 1996 Act as a "person who is subject to immigration control". But she then claimed, correctly as Tower Hamlets now acknowledge, that she was eligible, because she was the primary carer of a dependent child – her son Vishal – who was in full time education. This was the consequential effect of the decision of the European Court of Justice in Baumbast v SSHD [2003] INLR 1, which upheld the right of children of an EU national working in a host member state to live there in order to attend general education courses. Mrs Deugi, as the primary carer of Vishal, had a derived right of residence to enable Vishal to exercise his right, which existed even though his parents were divorced, and even if his father, an EEA national, no longer worked in the United Kingdom. This " Baumbast exception" now appears in the Immigration (EEA) Regulations 2000. In December 2003, Vishal was just 17 and in full time education.
Tower Hamlets did not, however, acknowledge that Mrs Deugi was eligible for assistance when she applied. They rejected her application in a decision letter taken to be of 20 th January 2004, saying that she was a person subject to immigration control. On 5 th February 2004, Mrs Deugi sought a review of the decision. On 20 th February 2004, Tower Hamlets upheld the original decision. This review decision was quashed on 16 th March 2004 upon appeal to the Bow County Court at a hearing before HH Judge Hornby, which Tower Hamlets did not attend, on the ground that its reasoning was flawed.
Tower Hamlets then took an apparently excessive time to reconsider Mrs Deugi's request for a review of the original decision. Mrs Deugi had to threaten judicial review proceedings, but agreed to a number of extensions of time until 8 th September 2004. During this period, the Home Office wrote to Tower Hamlets on 30 th June 2004, explaining their decision that Vishal benefited from the Baumbast exception and that Mrs Deugi could be considered as his primary carer.
6. On 29 th September 2004, Mrs Deugi, not being prepared to extend Tower Hamlets' time to complete their review beyond 8 th September 2004, appealed the January 2004 decision to the county court. On 27 th October 2004, five days after Vishal's 18 th birthday, Tower Hamlets conceded that their January 2004 decision was wrong, accepting that Mrs Deugi was eligible for housing assistance then. They said that a fresh decision would need to be taken in the light of updated information. It was possible that she was no longer eligible. They suggested that Mrs Deugi should withdraw her appeal, the Council agreeing to pay her costs. Mrs Deugi did not agree to withdraw her appeal. On 14 th January 2005, Tower Hamlets wrote saying that the January 2004 decision "may be unsafe", and withdrawing (or purporting to withdraw) that decision.
On 17 th March 2005, Tower Hamlets wrote giving what it maintains was a fresh decision upon Mrs Deugi's application for assistance. The decision was that she was a person subject to immigration control who no longer benefited from the Baumbast exception, because she was no longer the primary carer of a dependent child under 19 who was attending full time education. Vishal, although still under 19, was not in education, having left school at or just before his 18 th birthday; and Mrs Deugi, it was said, no longer received income support for him. Mrs Deugi requested a review of this decision, but continued her appeal against the January 2004 decision.
The appeal was heard by HH Judge Roberts in the Bow County Court on 28 th April 2005. In a judgment of 19 th May 2005, the judge allowed Mrs Deugi's appeal. He varied the decision of 20 th January 2004 into a finding that as at that date Tower Hamlets owed Mrs Deugi the duty under section 193(2) of the 1996 Act. Tower Hamlets appeal against this decision, with permission of Mummery LJ.
The Housing Act 1996
Part VII of the 1996 Act is concerned with homelessness. Sections 183 to 204A provide for homeless people to apply to a local housing authority for assistance; delineate the duties of local housing authorities in those circumstances; and provide for reviews of and appeals against decisions of local housing authorities. A full account of the structure of these sections is to be found in the judgment of Buxton LJ in Crawley B.C. v B (2000) 32 HLR 636 at 639 to 641. A shorter summary will suffice for present purposes. There has been a number of amendments to the statute since the decision in Crawley by the Homelessness Act 2002. One such amendment, to section 193, is confusingly mistranscribed in volume 21 of the 4 th Edition of Halsbury's Statutes 2005 Re-issue.
The core section of the 1996 Act for the purposes of this appeal is section 193. It applies, by section 193(1) ,
"… where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has priority need, and are not satisfied that he became homeless intentionally".
There are thus four considerations: homelessness, eligibility for assistance, priority need and intentional homelessness. For each of these, it is the local housing authority that has to be satisfied or not satisfied. As Buxton LJ explained in Crawley, the statutory structure places the primary decisions on the local housing authority, and the nature of any challenge to those decisions on an appeal has to be a public law challenge as in judicial review.
A person is homeless in the circumstances set out in section 175. A person is eligible for assistance unless they are excluded under sections 185 or 186 – see section 183(2) . The Baumbast exception arises under section 185. Persons are in priority need as defined in section 189. These include a person with whom dependent children reside or may reasonably be expected to reside (section 189(1) (b) ) . Almost by definition, a person who is, as a carer, within the Baumbast exception will be in priority need under section 189(1) (b) . Mr Underwood QC, for Tower Hamlets, does not argue otherwise. By section 191(1) , a person becomes intentionally homeless if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy. By section 177, it is not reasonable for a person to continue to occupy accommodation, if it is probable that this would lead to domestic or other violence against him or her. Mrs Deugi's case in short is that she left the matrimonial premises in Morecambe because of domestic violence, and that she was not in January 2004 (or since) intentionally homeless.
By section 193(2) , the local housing authority is under a duty to secure that accommodation is available for occupation for an applicant to whom section 193 applies. By section 193(3) that duty subsists "until it ceases by virtue of this section". One of the circumstances in which, by section 193(6) (a) , the local housing authority "shall cease to be subject to the duty" is if the applicant ceases to be eligible for assistance. Although Tower Hamlets now accept that Mrs Deugi was eligible for assistance in January 2004, they say that she had ceased to be eligible for assistance by the time of their letter of 17 th March 2005, because the Baumbast exception no longer applied to her. This was, I think, accepted on behalf of Mrs Deugi before the judge, although Mr Holbrook, for Mrs Deugi, reserved before this court the question whether she might not now be eligible for assistance for other reasons.
Section 193 has other circumstances in which the local housing authority shall cease to be under the section 193(2) duty – see sub-sections (6) (b) – (d) , (7) and (7B) . These do not include if the applicant ceases to be in priority need.
Section 202 gives an applicant the right to request a review by the local housing authority...
To continue reading
Request your trial
-
Slater v London Borough of Lewisham
...43 The court's proper approach to this question has been considered on a number of occasions and the authorities reviewed in London Borough of Tower Hamlets v Deugi [2006] EWCA Civ. 159 where May L.J. defined a question to be: "whether there was any real prospect that Tower Hamlets, acting ......
-
Ozbek v Ipswich Borough Council
...enquiry, could have reached – see the observations of Lord Justice May (with whom the other members of the Court agreed) in London Borough of Tower Hamlets v Deugi [2006] EWCA Civ 159, [36]. The applicant's counsel was, I think, minded to accept that it would be difficult to uphold that ele......
-
Griffiths v St Helens Metropolitan Borough Council
...Crawley Borough Council v B (2000) 32 HLR 636, and in shorter form in the judgments of another constitution of this court in London Borough of Tower Hamlets v Deugi [2006] EWCA CIV 159, which is to be delivered at the same time as the judgment in this appeal. It is not necessary to repeat t......
-
Thomas Norton v London Borough of Haringey
...is no real prospect that the LHA acting rationally could company to any other decision’ ( Deugi v Tower Hamlets London Borough Council [2006] EWCA Civ 159; [2006] HRL 28, at paragraph 28). c. He accepted that if the appeal were allowed on Ground A, that failure could not be put right. Disc......