London Borough of Wandsworth v NJ

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Gloster,Lord Justice Kitchin,Lord Justice Lewison,Mr Justice Coleridge,Lord Justice Richards
Judgment Date21 November 2013
Neutral Citation[2013] EWCA Civ 1373,[2013] EWCA Civ 1602
Date21 November 2013
Docket NumberB5/2013/0288,Case No: B5/2012/3414

[2013] EWCA Civ 1373

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WANDSWORTH COUNTY COURT

HIS HONOUR JUDGE WELCHMAN

2WT00908

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Kitchin

and

Lady Justice Gloster

Case No: B5/2012/3414

Between:
London Borough of Wandsworth
Appellant
and
NJ
Respondent

Mr D Lintott (instructed by Sharpe Pritchard LLP) for the Appellant

Mr M Westgate QC and Mr J Burton (instructed by Hodge Jones and Allen LLP) for the Respondent

Lady Justice Gloster

The issue

1

This case raises the issue as to the circumstances in which, for the purposes of sections 198(2) and 199 of the Housing Act 1996 (as amended by the Homelessness Act 2002) ("the 1996 Act"), an applicant for housing assistance has a local connection with the district of the authority to which his or her application is referred pursuant to section 198(1) of the 1996 Act. In particular this case raises the question whether a person's residence in a refuge in a particular local authority district, as a result of having been the victim of domestic violence, is a "residence of his own choice" within the meaning of section 199(1)(a) of the 1996 Act.

Introduction

2

This is an appeal by the London Borough of Wandsworth ("the Appellant") from the judgment of His Honour Judge Welchman, sitting in the Wandsworth county court, dated 11 December 2012 ("the judgment"). By the judgment the judge varied a review decision dated 26 July 2012 ("the review decision") made by Ms Marcia Anglin, the Senior Reviews Officer of the Appellant ("the SRO") pursuant to section 202 of the 1996 Act.

3

By the review decision the SRO confirmed an earlier decision made by the Appellant dated 7 March 2012 under section 184 of the 1996 Act ("the initial decision") whereby it concluded that NJ, the respondent to this appeal ("the Respondent"), was unintentionally homeless, was an eligible person and was in priority need within the meaning of the 1996 Act, but that she did not have a local connection with the Appellant. Accordingly the Appellant concluded that it had no statutory obligation to house the Respondent and referred her application to the London Borough of Lambeth ("LBC") purportedly pursuant to its powers section 198 of the 1996 Act, on the grounds that the Respondent had a local connection with LBC on the basis of her residence at a women's refuge in Lambeth from June 2011 to March 2012, and that neither the Respondent nor her daughter would run the risk of domestic violence in that other district.

4

By his order dated 11 December 2012, the judge; i) allowed the Respondent's appeal; ii) quashed the review decision; iii) ordered the Appellant to ensure that accommodation was available for occupation by the Respondent and her daughter pursuant to section 193 of the 1996 Act.

The facts

5

The respondent is in her late twenties. Her daughter was born in 2005. In June 2011, as a result of serious domestic violence, the Respondent left her home in Leicester and decided to travel to London to seek refuge. With the assistance of the Safeguard Project, she was found a place in a refuge in Lambeth, which she accepted. It was the first place which had become available.

6

The refuge arranged counselling for the Respondent in Lambeth and provided her with services designed to help her, and her daughter, overcome the effects of the domestic violence. The Respondent was also treated for depression by a GP in Lambeth.

7

After six months in the refuge the Respondent was considered by the staff to be ready for life in mainstream accommodation and, with their assistance, she applied on 18 January 2012 to the Appellant under Part VII of the 1996 Act. She chose to apply to the Appellant in order to make a "fresh start", because she had friends in its area and because she intended that her daughter should go to school there. She claimed that her residence in Lambeth had not been by choice.

8

In February 2012, the Respondent's former partner was charged in relation to a very serious assault on the Respondent committed in February 2011. He had not been charged previously as (i) the Respondent had not felt safe enough to report the incident to the Police; and (ii) he had been in a coma for a period following a car accident.

9

On 7 March 2012 the Appellant made the initial decision pursuant to section 184 of the 1996 Act. It decided that, although the Respondent qualified for housing assistance, because she had no local connections with Wandsworth, but did have a connection with Lambeth, the "referral conditions" set out in section 198 of the 1996 Act were satisfied. Accordingly the Appellant exercised its discretion to refer the Respondent's application to LBC pursuant, or purportedly pursuant, to its powers under section 198. In its letter dated 7 March 2012 the Appellant stated:-

"You have pointed out that your residence in a Lambeth women's refuge was not by choice. However, it is evident that regardless of how or the reason why you lived in Lambeth, you voluntarily accepted accommodation there, and hence it became your normal residence. Therefore, this council is satisfied that you have established a local connection with Lambeth, and not with this local authority."

10

On 16 March 2012 the Respondent telephoned the Appellant and requested a review of the Appellant's decision.

11

On 30 March 2012 the SRO sent the Respondent a "minded to find" letter stating that, although the Appellant was taking

" all reasonable steps to obtain as much information in relation to the matters which you have raised in relation to this review and to ensure that the review is dealt with fairly",

and that the SRO had yet to reach a decision on review, the SRO was minded to uphold the Appellant's original decision that the Respondent's local connection rested with Lambeth and not with the Appellant. The SRO identified the specific issues in respect of which she was minded to find against the Respondent. These included:

i) the reasons why the Respondent wanted to be housed in Wandsworth, namely friends and her attendance at church there;

ii) the question as to whether the Respondent's residence in Lambeth was her normal residence of choice.

12

On 14 May 2012 the Respondent moved to a refuge in Southwark following a visit from a friend from Leicester and concerns over her safety, because of the fear that her former partner might try to find out where she was living.

13

Subsequently, on 11 July 2012, the Respondent's solicitors sent extensive written review representations to the Appellant. These contended that the Appellant's failure to provide the Respondent with accommodation in Wandsworth was in breach of the Appellant's statutory duty and that the latter's referral of the Respondent's application to LBC was unlawful for the following reasons:

"1. Local Connection is a discretionary requirement and the authority should not apply it in these circumstances;

2. Our client does in any event have a local connection to Wandsworth;

3. Our client does not have a local connection to Lambeth because a refuge cannot be a 'residence of choice', and she formed no real connection with the area; and

4. Even if our client did have a local connection to Lambeth, she should not be referred there because she is at risk of violence in the borough. If the Authority had made inquiries before making the referral, they would have discovered that our client was at risk in the area and would not have made the referral."

14

Subsequently, the SRO made further factual inquiries of the Respondent, which were recorded in attendance notes of telephone conversations dated 24 and 26 July 2012.

15

On 26 July 2012 the SRO sent a further very detailed letter to the Respondent setting out the review decision. The letter stated that the SRO had concluded the Appellant's review and had decided to confirm the initial decision. In that letter she made it clear that she had taken into account:

i) all the information available to date;

ii) the issues relating to residence of choice;

iii) the issues relating to risk of violence in the Lambeth area;

iv) the facts relating to special circumstances; and

v) the facts relating to the Respondent's daughter's place at a school in Wandsworth.

16

On 5 October 2012 LBC wrote to the Respondent pursuant to section 184 of the 1996 Act informing her that it was satisfied that she was eligible for assistance, homeless, in priority need, not intentionally homeless and had a local connection with Lambeth. LBC accordingly accepted its obligation to house the Respondent.

The relevant statutory provisions

17

Part VII of the 1996 Act sets out a housing authority's duties to those who are homeless or threatened with homelessness. The relevant provisions are as follows:

i) Section 184(1) provides:

"If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves —

(a) whether he is eligible for assistance, and

(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part".

The authorities demonstrate that the burden is on the authority to make appropriate inquiries, which should be pursued vigorously and fairly. An applicant must be given an opportunity to respond to matters the authority is minded to weigh substantially against him. Any doubt or uncertainty must be resolved in the applicant's favour (see e.g. R v. Gravesham B.C, ex parte Winchester (1986) 18 HLR 208 QBD).

ii) Section 184(2) provides that:

"They may also make enquiries whether he has...

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