R (PB) v Haringey London Borough Council
| Jurisdiction | England & Wales |
| Judge | Andrew Nicol QC |
| Judgment Date | 18 September 2006 |
| Neutral Citation | [2006] EWHC 2255 (Admin) |
| Docket Number | Case No: CO/2034/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 September 2006 |
[2006] EWHC 2255 (Admin)
Andrew Nicol QC, Sitting as a Deputy Judge of the High Court
Case No: CO/2034/2006
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Stephen Knafler (instructed by Hopkin Murray Beskine, solicitors) for the Claimant
Bryan McGuire and Sian Davies (instructed by Davina Fiore, Head of Legal Services,
London Borough of Haringey) for the Defendant
Elisabeth Laing (instructed by Office of the Solicitor, Department for Work and Pensions,
Department of Health ) for the Interested Parties
Hearing dates : 13th and 14th July 2006
Andrew Nicol QC :
The Claimant in this application for judicial review is a Jamaican national who came to the UK in 1998. She was given 6 months' leave to enter. This was subsequently extended to allow her to remain in the UK as a student unti l 24th November 1999. Thereafter she has been an overstayer. She is the mother of five children. The eldest was born in Jamaica and came with her to the UK. The other four were born in the UK. One of them is (or is said to be) a British Citizen. Although he lives with his father, the Claimant has regular contact with him. There are outstanding care proceedings in relation to the other four children.
The Claimant has sought to regularise her immigration status. She has applied to the Home Office for leave to remain in the UK based on a policy that may lead to the grant of such leave to families who have resided here for at least 7 years. This application remains outstanding.
In 2005 the Claimant's accommodation became precarious. Although she managed to find temporary accommodation with friends or relatives she became street homeless on 7th March 2006. Before then she had applied to the London Borough of Haringey, the Defendant, for support and accommodation. This was refused on 3rd March 2006. On 7th March 2006 she lodged her application for permission to apply for judicial review. On 8 th March 2006 Davis J. granted interim relief. On 22nd March 2006, following an oral hearing, Sullivan J. granted permission to apply for judicial review and ordered interim relief to continue. At the hearing of the substantive application, the Secretaries of State for Health and for Communities and Local Government appeared as interested parties.
Anonymity of the Claimant
At the beginning of the hearing, Mr Knafler on behalf of the Claimant asked for an order under Contempt of Court Act 1981 s.11 prohibiting publication of the identity of the Claimant or her children on the grounds that the children were the subject of on-going care proceedings. Neither the Defendant nor the Interested Parties opposed this application, but I was concerned that such an order should not be made for more than a very short period without fuller argument. I agreed to make it, therefore, only until the following day and said that if the Claimant wished the order to be extended, notice ought to be given to the media through Press Association.
Having given the matter further thought over night and after hearing further submissions from Mr Knafler, I decided that it was unnecessary to continue any order under s.11. The children will anyway be protected by s.97(2) of the Children Act 1989 which provides:
'No person shall publish any material which is intended or likely to identify (a) any child as being involved in any proceedings before the High Court, a county court or a magistrates' court in which any power under this Act …may be exercised by the Court in respect to that or any other child.'
The Court of Appeal has recently held (see Clayton v Clayton [2006] EWCA Civ 878) that this restriction only lasts as long as the proceedings under the Children Act are continuing, but that, if and so far as it may be necessary for restrictions on identity to be continued, an application can be made to the Court which is hearing those proceedings. I allowed the Claimant to be referred to by her initials during the course of the hearing and will adopt the same course in this judgment, but any restriction on the media will follow
from, and last no longer than, the restriction which applies by virtue of s.97(2) or any further order of the court considering the care proceedings.
The issues for decision
The issues raised by this application can be grouped under the following heads:
a. Does the Defendant have the power to provide accommodation to the Claimant under Housing Act 1985 s.21?
b. Did the Defendant err in law in its decision that it was not obliged to provide support and accommodation to the Claimant under National Assistance Act 1948 s.21?
c. Did the Defendant have power to provide accommodation and support to the Claimant under Local Government Act 2000 s.2?
d. Should the Court make a declaration of incompatibility if Haringey had no power to provide the Claimant with accommodation and support and if, in consequence, her Convention rights would be violated?
I agree with Mr McGuire on behalf of Haringey and Miss Laing for the Interested Parties that it is sensible to take this issue first. Support under the National Assistance Act is, by s.21(1)(a), conditional on a need for care and attention which is not otherwise available. In addition, s.21(8) provides that assistance under that Act cannot be provided if the local authority has a power or duty to provide support under other legislation.
Housing authorities, such as the Defendant, have, of course, a variety of powers in relation to the provision of housing. However, the critical starting point for consideration of the Claimant's case is that she is a person who requires leave to enter or remain in the UK but does not have such leave. This means that she is 'a person subject to immigration control'—see Immigration and Asylum Act 1999 s.115(9). Because of this and because she is not within any of the exempt categories, she is made ineligible for housing benefit by Immigration and Asylum Act 1999 s.115(1)(j).
As a person who is subject to immigration control, she is ineligible for the allocation of housing accommodation by a local housing authority under Housing Act 1996 Part VI and the Secretary of State's regulations cannot lift this bar because she is also ineligible for housing benefit—see Housing Act 1996 s.160A(3) and (4). The same legislative pattern means that she is not eligible for housing under the homelessness provisions in Part VII of the Housing Act 1996 – see s.185(2) and (2A) of that Act. Mr Knafler therefore accepts that the Defendant cannot provide accommodation to the Claimant under either Part VI or Part VII of the Housing Act 1996.
However, he argues that the Defendant was empowered to grant her a licence under Housing Act 1985 s.21. This provides:
'(1) The general management, regulation and control of a local authority's
houses is vested in and shall be exercised by the authority …'
Mr Knafler argues that the expression 'management, regulation and control' includes the power to grant tenancies and licences. He relies on Shelley v London County Council [1949] AC 56 in which the House of Lords was considering Housing Act 1936 s.83(1) which conferred a very similar power on local authorities. Lord Porter said at p. 66
'"management" must in my view include a right to terminate the tenancy so far as the general law allows, i.e. after due notice. It is to my mind one of the important duties of management that the local body should be able to pick and choose their tenants at will.'
Lord Uthwatt said at p. 69
'The selection of tenants qualified to occupy the houses is unquestionably
an act of management and the exercise of a power.'
In Bristol District Council v Clark [1975] 1 WLR 1443 CA the Court of Appeal clearly thought that the general management, regulation and control of a local authority's housing stock (by then vested in it under Housing Act 1957 s.l11) included the power to 'pick and chose their tenants at will' (see for instance Lord Denning MR at p.1448). The decision was followed in Cannock Chase District Council v Kelly [1978] 1 WLR 1 CA. More recently, in Akumah v Hackney LBC [2005] UKHL 17 [2005] 1 WLR 985 at para [21] the House of Lords approved a construction of the term 'management' (by then in s.21 of the Housing Act 1985) 'in the widest possible sense' and consequently the House held that it embraced the power to establish a parking scheme on the authority's estate.
It follows from this, Mr Knafler argues, that s.21 of the Housing Act 1985 confers a power to grant and terminate tenancies and licences of a local housing authority's accommodation. He accepts that this power has to be read in the context of the subsequent housing legislation, but, he argues, that when examined, this has gaps where housing authorities can and do have recourse to s.21 as the power to grant access to their accommodation.
Thus, Part VI of the Housing Act 1996 establishes a regime for the allocation of housing accommodation by local housing authorities, but the expression 'allocation' is defined in s.159(2) of the 1996 Act in such a manner as not to include all the different ways in which a local housing authority can make accommodation available (to use a generic expression). The allocation regime does not, for instance, apply if the local authority grants a licence of accommodation which is not a separate dwelling (that would not be a secure tenancy because of the...
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