R (Lynch) v Lambeth London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 16 October 2006 |
| Neutral Citation | [2006] EWHC 2737 (Admin) |
| Date | 16 October 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1752/2006 |
[2006] EWHC 2737 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Her Honour Judge Hamilton Qc
(sitting As A Deputy High Court Judge)
CO/1752/2006
MR ROBERT LATHAM (instructed by Gorringe & Co) appeared on behalf of the CLAIMANT
MR DAVID CARTER (instructed by London Borough of Lambeth) appeared on behalf of the DEFENDANT
THE DEPUTY JUDGE: This is an application for judicial review of the defendant's decision under Part VII of the Housing Act 1996 as to whether the applicant was homeless, to be heard with an appeal to the county court under section 204 of that Act against a review decision on the same issue. In addition to those matters, the claimant seeks to quash the defendant's Allocation Scheme, or part thereof under Part VI of the Housing Act 1996 and the defendant's assessment of the claimant as not coming within group F (that is special cases for welfare referral for transfer). In addition to the applications to quash decisions under Part VI and VII of the Housing Act 1996, certain declaratory and mandatory orders are sought.
Permission to apply for judicial review was given by Silber J on 21 June 2006 in which he sets out the issues in the application as follows. Firstly, whether the defects in the defendant's section 184 decision letter, dated 1 February 2006, were capable of remedy, or were remedied by the review letter dated 16 May 2006 and the subsequent county court appeal. Secondly, whether the defendant failed to consider properly whether the claimant falls within group F or whether she should be eligible for welfare points under group D. Thirdly, whether the defendant's Allocation Scheme precludes the defendant from making lawful assessment of the claimant's application for accommodation on welfare grounds under Part VI of the Act.
Ms Lynch has been a tenant of the defendant since 1996 and lives at 4 Gannet Court, Croxted Road, London, SE21. This is a three-bedroom flat on the second floor with no lift. She occupies the flat with a partner and two children, James (13) and Aaron (10). The family have a variety of medical problems. The claimant suffers from fibromalgia and mechanical low back pain. She has been treated for depression and migraine. The claimant has been assessed as requiring wheelchair standard accommodation. The flat is not wheelchair accessible, nor is it capable of being so adapted. It is on the second floor of an unlifted flat. She can only use the stairs with difficulty. She uses a stick to mobilise indoors and adaptations are also required to the bathroom. While some adaptations have been made, there is insufficient space for a shower or to use the bath lift which has been installed.
James, who was born on 1 May 1993, suffers from epilepsy (tonic clonic with absent seizures), attention deficit hyperactivity disorder and co-ordination difficulties. He has been diagnosed as suffering from Asperger's Syndrome, a type of autism. The family have been assessed by some therapists as requiring accommodation with an additional bedroom and with a garden. James demonstrates challenging behaviour, including tantrums. His occupation therapist has recommended a number of exercises to improve his fine and gross motor skills, but he lacks space in the current accommodation to do the exercises. An adviser has assessed him as having to have a private garden to provide a safe area for the claimant to monitor him and permit him to engage in activities more independently.
Aaron, who was born on 23 September 1996, suffers from symptoms of attention deficit hyperactivity disorder, and James Kavanagh, the claimant's partner, suffers from angina, depression and severe headaches or migraine.
Ms Lynch's solicitors wrote a four-page application letter with 54 pages of documentation attached, mostly reports from doctors and occupation therapists on the family members. In essence, a number of the documents suggested that Ms Lynch should have a garden to assist with her children's difficulties, also that she may become wheelchair bound and so requires a ground floor flat which is wheelchair accessible.
The solicitor's letter stated that Ms Lynch was not using a wheelchair at present so any interim accommodation would not need to be adapted for wheelchair access, but when permanent accommodation was offered, the situation of wheelchair accessibility would need to be considered.
On the basis of the family's variety of medical concerns, the letter claimed she was homeless because it was not reasonable for her to occupy her current flat, and that is set out in section 175(3) of the Act, which reads:
"A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."
Ms Lynch took that four-page letter and attachments to the Housing Department and attended an interview. The defendant authority sent a decision letter under section 184 of the Act on 1 February 2006 in the following terms:
"In the absence of a formal indication that you have been requested to leave by notice to quit or court possession order, we do not have any reason to believe that you are homeless."
This letter ignored the wealth of evidence put in about the medical conditions of the occupants, and the writer appears not to have considered the argument as to whether it was reasonable for Ms Lynch and her family to continue to occupy the second floor flat.
Ms Lynch's solicitors replied on 20 February with a pre-action protocol letter for judicial review on the basis that the decision was not lawful as it was not a proper reasoned decision on the application. They required the Housing Authority to provide a proper reasoned decision or withdraw the decision letter and complete further inquiries before providing a properly reasoned decision. In that letter, they say that, without prejudice to the contention that the application has not been lawfully determined, the letter may be treated as a request for a review decision under section 202 of the Act. It is from this point that both sides then dug in their heels resulting in this litigation, part of which could possibly have been avoided or certainly dealt with at county court level.
The defendant wrote on 21 February. They refused to withdraw the section 184 decision and said that they were unequivocally treating the pre-action letter as a request for a review of the section 184 decision and the defendant's Allocation Scheme. The defendant's review decision letter was sent out of time. It finally arrived on 18 May 2006, and on 6 June the claimant issued a section 204 appeal in the county court without prejudice to their contention that the section 184 letter was a nullity.
Mr Latham, for Ms Lynch, said that the section 184 decision was unlawful because insufficient reasons were given and insufficient inquiries had been made by the defendants. It was unlawful because it was totally devoid of reasons on the central issue as to whether the claimant is homeless in that it is not reasonable for her to continue to occupy her current accommodation. I was referred to a number of cases on the duty to give reasons. In Re Poyser & Mills Arbitration [1964] 2 QB 467; R v London Borough of Croydon ex parte Graham [1993] 26 HLR 286; and R v City of Westminster ex parte Ermakov [1996] 28 HLR 819. These cases were decided before the Housing Act 1996 came into force.
I accept that reasons should be intelligible and convey to the applicant the reasons why the application has been rejected in such a way that if they disclose an error of reasoning, they may be challenged. However, since those decisions, the review procedure under section 202, with a further appeal to the county court under section 204 on a point of law, has been provided. Mr Latham said that a review under section 202 could not cure the defects in the section 184 letter. The claimant was prejudiced by the defendant's failure to provide a proper decision letter because it gave her no opportunity to make further representations before that decision was renewed. In the absence of reasons, it was not possible to make representations for the purposes of the review. Therefore, she was deprived of the two-stage process available if a lawful section 184 decision had been made.
The local authority appear to have made no inquiries of their own after the application was made, and that quashing the section 184 decision would enable them to make such inquiries. A review under section 202, followed by an appeal to the county court under section 204, said Mr Latham, only permits the court to quash the section 202 decision so it would not put the claimant in the same position as if the section 184 decision was quashed by judicial review. That would enable the claimant to retain the benefit of the two-stage process.
Under the section 202 procedure, the claimant had no opportunity to make representations until the "minded to" letter was sent, by which time the reviewing officer had formed an adverse view of the claimant's case. The review letter was outside the eight week time limit, and the claimant was not told about the review, or the procedure to be followed. The requirements to do so are contained in the Allocation of Housing and Homelessness (Review Procedure and Amendment) Regulations 1996 (sections 9(1) and 6(2)).
With regard to the claimant's section 204 appeal, which was consolidated to be...
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