R (McKenzie) v London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Miss Belinda Bucknall Q.C. |
| Judgment Date | 21 May 2009 |
| Neutral Citation | [2009] EWHC 1097 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12141/2008 |
| Date | 21 May 2009 |
[2009] EWHC 1097 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Miss Belinda Bucknall Q.C.
Sitting as a Deputy Judge of the High Court
Case No: CO/12141/2008
Josephine Henderson (instructed by Helen Robbins Solicitors) for the Claimant
Wayne Beglan (instructed by the Legal Department of the London Borough of Waltham Forest) for the Defendant
Hearing date: 3 rd April 2009
Miss Belinda Bucknall Q.C.:
The background to the claim
The claim
This is a claim for judicial review of a decision relating to a homeless application by the Claimant. The claim is now academic because the Claimant has been accommodated in a flat about which there is no complaint, or at least none that is live in these proceedings. The central issues in the case are whether the claim should proceed in circumstances where there is no lis between the parties and, if so, whether the Claimant is entitled to the relief currently sought. Before turning to those issues, it is necessary to set out the facts and also the law relating to homeless applications as it relates to the Claimant. I have taken the facts from the Claimant's witness statement dated 16 th December 2008 and the information set out in various letters written by the Claimant's solicitors and by the Defendant. I have assumed for the purpose of this judgment that the facts as set out are true.
The facts and the relevant law
In 2005 the Claimant applied to the Defendant for accommodation but was told that it could not assist because she was single and thus not a priority. At the beginning of 2007 she was accommodated in Flat A in a hostel in Leytonstone for single men and women provided by London and Quadrant Housing Association and managed by Rainer Housing Service. Children were not allowed to live in the hostel. She occupied the flat on her own. It did not, however, have a private bathroom and her witness statement evidence is that she had to share a bathroom with a boy. Visitors came to the hostel from time to time but there is no evidence that they would use the bathroom shared by the Claimant and the boy. While living in this accommodation she was provided with a support worker.
In the spring of 2008 the Claimant became pregnant. The expected date of her confinement was 21 st December 2008. In due course the fact of the Claimant's pregnancy became known to her landlord and on 26 th September 2008 Rainer Housing Service served a notice requiring possession pursuant to section 21 of the Housing Act 1988. It is common ground that possession could not have been obtained before March 2009 and there was thus no question of her being evicted before or even immediately after the birth of her child, notwithstanding the landlord's no-child policy.
The letter accompanying the notice stated that as she was now pregnant the accommodation was no longer suitable. It continued,
“It is not appropriate for you to live in a shared mixed house. Tenants are allowed to have visitors in the property from time to time. As such it has been agreed that Rainer London Housing would not want to expose you and the unborn baby to any potential risk that could emanate from this situation.”
The letter advised her to contact her Housing Support Worker for support.
Before dealing with subsequent events it is convenient to set out here the legislative scheme which governs the Defendant's obligations when faced with a homeless application by someone who, like the Claimant, was eligible for assistance and who, like the Claimant, would, if homeless, have a priority need by virtue of her pregnancy.
Section 188(1) of the Housing Act 1996 provides that
“If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance, and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.”
The duty is thus couched in terms of an obligation to provide interim accommodation. It is, however, a condition precedent to the triggering of that duty that the housing authority has reason to believe that the applicant is homeless. Section 175(1)-(4) defines the circumstances in which a person is or is to be treated as homeless. Although there was reference to section 175(4) at the hearing, the contentions of both parties were focussed on sub-section (3). This provides that “a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.”
Following receipt of the notice requiring possession, the Claimant went to the Defendant's Homeless Person Unit on 8 th October 2008 and made a homeless application. She was interviewed and her details were taken down. She was apparently told that since she was not in fact at that time homeless she could either wait until she was evicted in March 2009 and then make a homeless application or she could apply for housing pursuant to the Defendant's rent deposit scheme where applicants are housed within the private rented sector and an agent or private landlord manages their tenancy. The advantage of the rent deposit scheme is that it enables applicants who qualify to access better quality accommodation than their local authority would be likely to provide pursuant to the section 188(1) duty. The Claimant's preferred option was to be housed pursuant to the Defendant's rent deposit scheme and an arrangement was made for someone to visit the Claimant at her home on 16 th October 2008. If she had been accepted for the rent deposit scheme her homeless application would have become redundant because it is apparent that she could have been re-housed in the private sector without difficulty. As it turned out, however, those who were familiar with the Claimant, namely her landlord and her support worker, were concerned that she would not be able to manage if she moved into the private sector because she would no longer be provided with a support worker.
On or shortly before 18 th November 2008 the Claimant instructed solicitors. On that date they sent a letter to the Defendant passing on the Claimant's instructions that
“she is very concerned about staying in her current accommodation as she shares her bathroom with a boy and only single people live in the hostel and she is not allowed to have children in the accommodation … that the accommodation has a rat infestation and it is very noisy anddangerous and that the hostel has been broken into by people with guns which is not safe for a baby”.
It is apparent from this that the Claimant's primary concern at this time was for her child in the period after its birth if she was not provided with accommodation until she was evicted in March, although I accept that she was also objecting on her own account to the fact that she shared her bathroom with a boy. The letter asked the Defendant to accept a homeless application from the Claimant on the basis that it was not reasonable for her to continue to occupy her current accommodation and to provide her with temporary accommodation immediately.
The Defendant replied on 21 st November 2008, stating that the Claimant was not in fact homeless, that the conditions at the hostel were a matter for her landlord and referring to the on-going investigation into whether the Claimant's desire to be re-housed in the private sector was feasible, in the terms already set out above.
On 3 rd December 2008 the Claimant's solicitors sent a further letter repeating much of what was said in the letter of 18 th November 2008 as to the conditions in the hostel and insisting that in the circumstances it was not reasonable for the Claimant to continue to reside in the hostel, with the result, as contended, that she was homeless and in priority need. On the same day they sent a letter before action.
On 5 th December 2008 the Defendant notified its decision in the letter which is at the heart of this claim. In so doing the Defendant dealt with each one of the points relied upon by the Claimant in support of her contention that the accommodation was such that it was not reasonable for her to continue to occupy it. In the same letter the Defendant expressly accepted that the Claimant would not remain in her present accommodation and that she had recently identified a property in Ilford which was available under the rent deposit scheme which had fallen through because her support worker felt that she was not yet ready to live on her own. It was further made clear that because the Claimant was still entitled to live in the hostel and did not yet have a baby the Defendant did not consider that a duty pursuant to section 188 had been triggered, the clear inference being that when she had a baby and if she was still considered not to be ready to live on her own in private sector housing, it accepted that the duty would be triggered.
On 11 th December 2008 the Claimant's solicitors sent a further letter to the Defendant pointing out that the Claimant was due to...
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