R MT (by his litigation friend GT) v Oxford City Council
| Jurisdiction | England & Wales |
| Judge | Judge Sycamore |
| Judgment Date | 06 March 2015 |
| Neutral Citation | [2015] EWHC 795 (Admin) |
| Date | 06 March 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/14459/2013 |
[2015] EWHC 795 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Sycamore
(Sitting as a Judge of the High Court)
CO/14459/2013
Ms T Jaber (instructed by Campbell Law) appeared on behalf of the Claimant
Mr L Johnson (instructed by Oxford City Council) appeared on behalf of the Defendant
Hearing date: 10 February 2014
This is a claim for judicial review by MT, who appears by his litigation friend, GT. Permission was initially refused on the papers on 28 February 2014 by His Honour Judge Denyer, sitting as a Judge of the High Court. Subsequently, on 21 August 2014, following an oral renewal hearing, permission was granted by His Honour Judge McKenna, sitting as a Judge of the High Court.
The claim is concerned with the housing obligations of the defendant local authority under the National Assistance Act 1948 ("the 1948 Act") and under Part 7 of the Housing Act 1996 ("the 1996 Act").
The claimant's judicial review claim form, which was lodged on 2 October 2013, describes the details of the decision to judicially review as a decision:
"to refuse the claimant public housing on the basis that he lacks capacity".
The form does not provide any details of the date of decision to be challenged. In the grounds which accompany the judicial review claim form, the issue that arises in the claim is described thus:
"The claimant has been refused public housing on the basis that he lacks capacity. The issue that arises is whether that approach is inconsistent with article 14 of the European Convention on Human Rights."
In summary, the claimant has a mental disability. It was accepted by the parties that as a consequence he is unable to manage his property and financial affairs. On 20 October 2010, his father was appointed as his deputy under the Mental Capacity Act 2005. By a letter of 29 May 2008, Oxfordshire County Council informed the defendant, in the context of an application to go on the General Housing Register in the following terms:
"[M] has learning disability, this means that he needs daily care to meet his social and personal care needs which is currently provided by his parents his family can no longer continue to care for him at home and for this reason he has been given notice to move out."
Oxfordshire County Council is the social services authority for the defendant's area.
5 At the time of the letter of 29 May 2008, the claimant was living with his father. He has continued to live with his father and at the date of this hearing he was still living with his father.
6 On 19 October 2011, the claimant applied to the defendant as homeless. On the same day, the defendant wrote to the claimant explaining that it was satisfied that the council did not have any duty to him under Part 7 of the Housing Act 1996 because he lacked capacity to make such an application. The letter went on to say that a referral was being made to Adult Social Services, Oxfordshire County Council, who the defendant understood was prepared to offer the claimant accommodation under the 1948 Act.
7 By letter of 28 October 2012, in reply to a letter 15 October 2012 from the claimant's solicitor, the defendant summarised the history subsequent to the letter of 19 October 2011 and indicated:
"Under Part 7 of the Housing Act 1996 an incapacitated person who lacks capacity cannot make an application as homeless."
The defendant also referred to the case of R v Oldham Metropolitan Borough Council ex parte Garlick [1993] AC 509 in the following terms:
" …. The House of Lords held that a homeless applicant must be capable of accepting or rejecting an offer of accommodation or assistance in order to qualify as an applicant for the purposes of the Act. Where someone does not have the capacity to apply, nor to authorise someone to apply on their behalf, they cannot make an application under Part 7. There must be capacity to respond to the offer and to undertake its responsibilities.
In addition, the case law suggests that there is only a requirement to meet ordinary housing needs under Part 7 and not provision of specialist accommodation ( R(Hughes) v Liverpool City Council [2005] LGR 532. Such needs should be addressed under section 21 of the National Assistance Act 1948, as amended".
Although the claimant described the challenge as being to a decision to refuse him public housing, the reality is that the claimant has not been refused public housing. The decision of the defendant was that as an incapacitated person lacking capacity he cannot make an application as homeless. The claimant in submissions described the claim as reflecting a continuing state of affairs which was thus not out of time. For my part, I have some difficulty with that assertion as the only extant decision of the defendant is that of 19 October 2011. Nevertheless, given that in granting permission the judge appears not to have considered that there had been delay, I will not dismiss the claim on the basis that it is out of time.
The two statutory provisions both concern the provision of accommodation. Section 193 of the 1996 Act provides:
" 193 Duty to persons with priority need who are not homeless intentionally
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally."
Section 21 of the 1948 Act provides:
" 21 Duty of local authorities to provide accommodation
(1) Subject to, and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing—
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them ….".
Both parties agree that the lower courts are bound by decisions of the higher courts whether or not those decisions are inconsistent with subsequent decisions of the European Court of Human Rights ( Kay v Lambeth London Borough Council [2006] 2 AC 465), unless the case fell into the exceptional category identified by Lord Bingham in Kay.
In Garlick, the House of Lords was considering the same question as that posed in this case; that is to say whether a person who lacks capacity to enter into a tenancy agreement could apply under Part 7 of the 1996 Act. The House of Lords, Lord Griffiths, defined the nature of the duty at 516E-G:
"….It is of the first importance to understand the nature of the duty imposed upon local housing authorities by Parliament. It is not a duty to take the homeless off the streets and place them physically in accommodation. The duty is to give them and their families the first priority in the housing queue ….".
In determining whether a person who lacked capacity to enter into a tenancy agreement could apply under Part 7, at 519E, Lord Griffiths said this:
"I have already pointed out that the duty under this Act is a duty to make an offer of permanent accommodation. As Purchas LJ pointed out in Reg v Tower Hamlets, London Borough Council, Ex parte Monaf (1988) 86 LGR 709, 732; 20 HLR 529, 550, the Act is primarily to do with the provision of bricks and mortar and not with the care and attention for the gravely disabled which is provided for in other legislation."
And at 520A, Lord Griffiths said:
"But I can see no purpose in making an offer of accommodation to a person so disabled that he is unable to comprehend or evaluate the offer. In my view it is implicit in the provisions of the Act that the duty to make an offer is only owed to those who have the capacity to understand and respond to such an offer and if they accept it to undertake the responsibilities that will be involved. If a person is so disabled that he cannot do this he is not left destitute but is protected by the National Assistance Act 1948 which by section 21(1) provides:
'It shall be the duty of every local authority, subject to and in accordance with the provisions of this Part of this Act, to provide — (a) residential accommodation for persons who by reason of age, infirmity or any other circumstances are in need of care and attention which is not otherwise available to them; (b) temporary accommodation for persons who are in urgent need thereof, being need arising in circumstances which could not reasonably have been foreseen or in such other circumstances as the authority may in any particular case determine'."
In my judgment, that decision is determinative of the issues in this claim and, applying the principles in Garlick, it follows that the claim must be dismissed.
The claimant seeks to argue that notwithstanding Garlick, Article 14 of the ECHR is engaged as is set out in paragraph 4.1 of the claimant's grounds in support of the claim "The claimants submit that the interpretation of the duty of the local authority in Garlick violates Article 14". It is...
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