R (Lawer) v Restormel Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 12 October 2007 |
| Neutral Citation | [2007] EWHC 2299 (Admin) |
| Docket Number | Case No: CO/8556/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 October 2007 |
[2007] EWHC 2299 (Admin)
Mr Justice Munby
Case No: CO/8556/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The claimant did not appear and was not represented
Mr Jon Holbrook (instructed by Restormel Borough Council) for the defendant
Hearing date: 5 October 2007
Judgement
These are proceedings for judicial review in which the claimant seeks to challenge the exercise by the defendant local authority of its powers and duties under section 202 of the Housing Act 1996. The defendant for its part seeks to have set aside an ex parte injunction which the claimant obtained out of hours from the duty judge.
The background
The claimant is a married woman with two children, aged respectively 15 and 10. She has, she says, suffered continual domestic violence at the hands of her husband. Things reached such a state of affairs that she felt unable to go on living in the matrimonial home, a property in Newquay of which she was the secure tenant.
On 6 June 2007 the claimant sought assistance from the defendant local authority. She was told that the local authority could not assist and that she should travel to Dover, where her sister lived and where the relevant local authority, Dover District Council, would be able to assist her. She travelled to Dover the same day, with the assistance of travel warrants provided by the defendant.
The next day, on 7 June 2007, the claimant spoke to the housing department of Dover District Council. She claims that she was advised to give up her tenancy. The file note of the interview records discussion of "poss[ible] mutual exchange using property in Newquay." The next day, 8 June 2007, she wrote a letter (a copy of which is on Dover District Council's file) "to whom it may concern" stating her "wish to terminate my residency with immediate effect."
The claimant was interviewed by another officer of Dover District Council on 18 June 2007. By then, it would seem, she had given up the tenancy. The file note of the interview records:
"Has given up tenancy … She tells me that [P] advised her to terminate. I advised her that I would not have advised her to terminate as a council tenancy is secure and can be used to transfer etc. I advised her to contact her HA and rescind the termination."
It appears from the same file note that the landlord was unwilling to rescind. On 20 June 2007 the claimant wrote to the landlord saying that her son would be returning the keys.
Although the claimant had written to Dover District Council on 8 June 2007 indicating that she wished to make a homelessness application, she never, according to Dover District Council, completed the relevant forms.
Be that as it may, on 18 July 2007 the claimant returned to Cornwall with her children. On 20 July 2007 she made a homelessness application to the defendant in accordance with the Housing Act 1996. The claimant was interviewed. Her application was refused by the defendant, the notification of its decision and reasons being given in accordance with section 184(3) of the Act by a letter dated 23 August 2007.
The defendant acknowledged in its letter that the claimant was homeless, as well as being in priority need, but concluded that by surrendering her tenancy she had become homeless intentionally within the meaning of section 191.
It is apparent from the letter that the defendant had obtained detailed information from Dover District Council, in particular as to the interview with the claimant on 7 June 2007. (Dover District Council had sent copies of the documents on its file to the defendant on 10 August 2007.) The letter records what the claimant had told the defendant in her interview, including in particular her assertion that she had been advised on 7 June 2007 to give up her tenancy. The letter records Dover District Council's position as being that this was "untrue." This appears to be a reference to a file note dated 3 August 2007 sent by Dover District Council to the defendant together with the other documents on 10 August 2007. Written by the officer who had interviewed the claimant on 7 June 2007, this recorded the claimant as having said at the interview on 18 June 2007 that she had been advised to surrender the tenancy. The file note continues:
"This is wholly untrue, at no time was Mrs Lawer advised to surrender her tenancy and furthermore would never be given such advice by anyone in this section. We would in fact caution anyone against such action and frequently have to do so. I did advise that the Newquay property could be used as a method of obtaining a Mutual Exchange."
The defendant's letter concluded by explaining that although the defendant would nonetheless provide the claimant with accommodation for a reasonable period to enable her to find her own accommodation in the private sector, that accommodation would not in any event be provided beyond 10am on Friday 21 September 2007.
The claimant wrote to the defendant on 6 and again on 9 September 2007. The defendant, properly, treated the letter dated 9 September 2007 as a request by the claimant for a review under section 202 of its previous decision. The defendant wrote to the claimant to that effect by an undated letter which appears to have been sent on or shortly after 11 September 2007. The letter, which was written by Giselle White, the defendant's Assistant Housing Services Manager, said:
"I will now wait for yourself or advocates acting on your behalf to put in writing any grounds that you wish to be considered during the review. Unfortunately "I am not happy with the decision" is not a ground that can be considered.
Regarding your request that this Authority continue to accommodate you pending the outcome of the review I regret to inform you that this will not be possible. I can confirm that no further accommodation will be provided for you after the 21 st September 2007.
… When I have received the grounds for requesting a review I will contact you to make an appropriate appointment to discuss your appeal."
No grounds in support of the review have ever been sent to the defendant, either by the claimant or by those representing her.
The legal framework
I need not rehearse the scheme of the Act in any detail. It suffices for present purpose to draw attention to two provisions. The first relates to the local authority's duty to review a decision which it has taken in accordance with section 184 of the Act. Section 184(3) requires the local authority to notify the applicant of its decision and, if the decision is adverse to her, to inform her of the reasons for its decision. Section 202(4) provides that:
"On a request being duly made to them, the authority or authorities concerned shall review their decision."
The second relates to the provision of temporary accommodation by the local authority pending the outcome of its decisions. Section 188(1) of the Act provides that, if it has reason to believe that an applicant may be homeless, eligible for assistance and have a priority need within the meaning of section 189, the local authority "shall" secure accommodation for the applicant pending its decision under section 184. Section 188(3) provides that:
"The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).
The authority may continue to secure that accommodation is available for the applicant's occupation pending a decision on a review."
So the defendant had the power but was under no duty to provide the claimant with accommodation after notification to her of its decision on 23 August 2007.
Although the local authority is not under any duty to provide accommodation in these circumstances, it is under a duty, if requested to provide accommodation pending the outcome of the review, to consider whether or not to exercise its power: see generally R v Camden London Borough Council ex p Mohammed (1998) 30 HLR 315 approved by the Court of Appeal in R v Brighton & Hove Council ex p Nacion (1999) 31 HLR 1095.
This involves carrying out a balancing exercise. As Latham J put it in Mohammed at page 321:
"the underlying requirement of the exercise of this discretion is to keep, on the one hand, well in mind the objective of fairness between those who are homeless in circumstances where the local housing authority has in its first decision decided that there is no duty to the particular applicant and, on the other hand, to give proper consideration to the possibility that the applicant may be right, and that to deprive him or her of accommodation could result in a denial of an entitlement."
He continued:
"In carrying out that balancing exercise, it is clear that there are certain matters which will always require consideration. First, the merits of the case itself and the extent to which it can properly be said that the decision was one which was either apparently contrary to the merits of the case or was one which required a very fine balance of judgment which might go either way.
Secondly, it requires consideration of whether there is any new material, information or argument put before the local housing authority which could have a real effect upon the decision under review.
Finally, it requires consideration of the personal circumstances of the applicant and the consequences to him or her of an adverse decision on the exercise of discretion. It may well be that in some cases other considerations...
To continue reading
Request your trial
-
R Mohammad Shahzad Khan v Secretary of State for the Home Department
...for an injunction? In that context, it is clear that it is insufficient just to disclose the document. In R (Lawler) v Restormel BC [2007] EWHC 2299 (Admin) a without notice injunction was obtained from the duty judge as the result of an urgent out of hours application in support of a chall......
-
R Vincent Nolson v Stevenage Borough Council
...mandatory injunction that accommodation should be provided. This normally requires the showing of a strong prima facie case ( R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin). 2. I do not consider that a strong prima facie case has been show that the [Council] acted unlawfull......
-
JC v KH
...in authority: X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341 per Munby J at [53] and R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin) per Munby J at [62]: "In the first place, "to grant an injunction without notice is to grant an exceptio......
-
R (Casey) v Restormel Borough Council
...see R v Brighton & Hove Council ex p Nacion (1999) 31 HLR 1095 and my decision, a few days after this case was before me, in R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin), a case which, as it happens, involved the same local authority. Order 25 The order which I made laid d......
-
Table of Cases
...DLR (3d) 109,1981 CanLII 1829 (HCJ) 50 36 122 126 38,41,71 4 16, 90, 91 R (on the application of Lawer) v Restormel Borough Council, [2007] EWHC 2299 (Admin) R (on the application of Revenue & Customs Prosecution Office) v 115 Lloyds TSB, [2007] EWHC 2393 (Admin) Rv Consolidated Fastfrate T......