R (Abdi) v Lambeth LBC
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 2007 |
| Neutral Citation | [2007] EWHC 1565 (Admin) |
| Date | 26 June 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4340/2007 |
[2007] EWHC 1565 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Hickinbottom
(Sitting as a Deputy High Court Judge)
Case No: CO/4340/2007
Bryan McGuire (instructed by AP Law) for the Claimant
David Carter (instructed by the Legal Services Department of The London Borough of Lambeth) for the Defendant
Hearing dates: 19 th June 2007
Introduction
This is an application for judicial review of a decision of the London Borough of Lambeth ("the Council") of 22 May 2007 not to provide the Claimant with temporary accommodation pending a review of the Council's earlier decision not to provide her with housing as a homeless person. The claim raises a discrete point of wide application and some practical importance, namely whether it is lawful for the same housing officer who has made a decision refusing an application for housing under Part VII of the Housing Act 1996 also to decide an application for temporary accommodation pending a review of that decision.
On 30 May 2007, the matter came before Underhill J, who ordered the application for permission to apply for judicial review to be heard on notice. When the matter came before me, on the joint application of the parties I agreed that the application for permission and (if granted) for the substantive application should be heard at the same time. This is the reserved judgment from that hearing.
The Statutory Scheme
The provision of housing assistance by local housing authorities to homeless persons is the subject of a comprehensive statutory scheme now found Part VII of the Housing Act 1996 as amended by the Homelessness Act 2002.
The scheme so far as relevant to this claim is as follows:
(i) A person is homeless if he has no accommodation available for his occupation, which it is reasonable for him to occupy. A person is threatened with homelessness if it is likely that he will become homeless within 28 days (Section 175).
(ii) An authority are obliged to accept an application for homelessness assistance if they have reason to believe that the applicant may be homeless or threatened with homelessness (Section 183(1)).
(iii) If the authority have reason to believe that a person may be homeless or threatened with homelessness, they are under a duty to make such enquiries as are necessary to satisfy themselves whether he is eligible for assistance and if so whether any duty (and, if so, what duty) is owed to him under Part VII of the Act (Section 184(1)).
(iv) Where the authority have reason to believe that an applicant may be eligible for assistance, may be homeless and may have a priority need, they have a duty to secure interim accommodation for the applicant pending their decision on his application. Such a duty ceases when the authority's decision on the application is notified, even if the applicant seeks to challenge that decision, e.g. by requesting a review (Section 188). Those with priority need include a pregnant woman (Section 189).
(v) When the enquiries have been completed, the authority are under an obligation to notify the applicant of their decision and, in so far as it is against the applicant's interests, the reasons for their decision (Section 184(3)).
(vi) Any right to interim accommodation ceases when the authority give the applicant notification of a decision under Section 184 (see sub-paragraph (vii) below). However, if an applicant seeks a review, the authority have a power to continue to secure interim accommodation remains available to the applicant pending a decision on review (Section 188(3)).
(vii) The applicant has the right to ask the authority to review various categories of decision under Part VII, including a decision under Section 184. However, a decision in respect of interim accommodation is not reviewable (Section 202(1)(b)).
(viii) The applicant has a right to appeal to the county court on any point of law arising from a review decision if he is dissatisfied with the decision. An applicant only has a right to appeal a decision that can be the subject of review under Section 202(1) ( Demetri v Westminster City Council [2000] 1 WLR 772): and therefore has no appeal to the county court in respect of a decision not to secure him interim accommodation. The only method of challenge to such decisions is by way of judicial review.
With regard to this scheme, three specific matters are of particular note in relation to the claim before me, namely (i) the role of judicial review in the scheme, (ii) the proper approach to the power resting in local housing authorities to secure interim accommodation following a Section 184 decision adverse to the applicant, and (iii) the procedure on review: and I will deal with these, before I turn to the facts of the case.
The Role of Judicial Review in the Scheme
The 1996 Act introduced a right of appeal to a county court in respect of decisions made by local housing authorities on applications from the homeless for housing assistance. Prior to the Act coming into force, the only challenge open to unsuccessful applicants was by way of judicial review. However, as Lord Woolf MR explained in R v Brighton & Hove Council ex parte Nacion (1999) 31 HLR 1095 at pages 1100–1, judicial review was not regarded as an appropriate method of challenge because the need for relief was often brought at very short notice; applicants often lived far from London; and High Court proceedings were not regarded as the most appropriate forum for resolving the often delicate issues that arose out of local authorities' responsibilities for providing accommodation. Parliament therefore intervened to give unsuccessful applicants the right to appeal to the county court on points of law only, which had a number of benefits: it relieved the work of the Administrative Court, it gave the applicants a more accessible legal right of challenge and, because of the availability of such a right, it is widely regarded as having led to an improvement of the decision-making process in many local authorities.
Parliament did not give any right of appeal in respect of interim relief: any right of challenge to unsuccessful applications for interim accommodation remained to the High Court. However, the High Court has emphasised that this residual jurisdiction must not be used to frustrate the Parliamentary intention of the 1996 Act, which was generally to remove issues with regard to housing the homeless from the High Court. In a number of cases, the courts have emphasised that the scheme of Part VII of the 1996 Act is intended to be a comprehensive one, in which Parliament has been specific about where it intends the responsibility for decision-making to lie: and the courts must generally defer to that intention. For example, in Nacion, Lord Woolf MR said of the High Court's residual jurisdiction with regard to interim relief:
"In an emergency situation, where a person is concerned about the decision of an authority not to provide interim accommodation, it has to be accepted that this is a matter which is given to the authority to deal with, and the courts generally have no power to intervene. It is only in an exceptional case… that this court can intervene on judicial review….
If an authority refuses even to consider exercising its discretion under Section 204(4) then I can understand that judicial review may be an appropriate remedy. Apart from that situation, I have difficulty in envisaging cases where application for judicial review will be appropriate….
…. [I]n a case where a local authority has not exercised its discretion under Section 204(4) in an applicant's favour, the only course which can be appropriately be taken in the general run of cases is to make an application (which has not been made in this case) for the appeal under Section 204 to be heard as soon as practicable."
These comments were made in relation to the power in a local authority under Section 204(4) to provide temporary accommodation to an applicant pending an appeal to the county court: but they are equally applicable to the exactly similar power under Section 188(3) in relation to the period pending review.
The Power to Secure Interim Accommodation
The power to secure interim accommodation after a Section 184 decision has been notified and pending a review under Section 202(1) was the subject of consideration by this court in R v London Borough of Camden ex parte Mohammed (1997) 30 HLR 315. Latham J held that, when an authority exercise their power under Section 188(3), they have to balance the objective of maintaining fairness between homeless persons in circumstances where they have decided that no duty is owed to the applicant, and proper consideration of the possibility that the applicant might be right and that to deprive him of accommodation could result in the denial of an entitlement. In carrying out this balancing exercise, certain matters will always need to be taken into account:
(a) the merits of the case and the extent to which it can properly be said that the decision was contrary to the apparent merits or was one which involved a very fine balance of judgment;
(b) whether consideration is required of new material, information or argument which could have a real effect on the decision under review; and
(c) the applicant's personal circumstances and the consequences to him or her of an adverse decision on the exercise of the discretion.
By "merits of the case" is meant "the merits of the applicant's case that...
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