R (Raw) v London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Stadlen |
| Judgment Date | 12 March 2010 |
| Neutral Citation | [2010] EWHC 507 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2101/2009 |
| Date | 12 March 2010 |
[2010] EWHC 507 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Before :THE HONOURABLE MR JUSTICE STADLEN
Case No: CO/2101/2009
DAVID WATKINSON (instructed by HARTNELLS SOLICITORS) for the CLAIMANT
WAYNE BEGLAN (instructed by LONDON BOROUGH OF LAMBETH LEGAL SERVICES) for the DEFENDANT
Hearing dates: 29 and 30 October
Judgent
The Honourable Mr Justice Stadlen:
This is a claim for judicial review against the London Borough of Lambeth Council in respect of decisions allegedly made in connection with the claimant's application for accommodation as a homeless person pursuant to Part VII of the Housing Act 1996.
The Council runs a voluntary rent deposit scheme under which an associated agency called Lettings First provides assistance for finding private rented property and offers a deposit if a one year shorthold tenancy can be found. The claimant alleges that the Council operates and applied to him an unlawful policy of not continuing with inquiries into an application for accommodation as a homeless person under Part VII of the 1996 Act if the applicant has been referred to Lettings First to assist in obtaining rented accommodation in the private sector.
In the Judicial Review Claim Form he sought an order quashing the decision not to continue with those inquiries, a mandatory order requiring the Council to continue with them and also to continue assisting him with obtaining rented accommodation under the rent deposit scheme. He further sought declarations that the two decisions (a) not to continue with the inquiries because he had been referred to Lettings First to assist him in obtaining rented accommodation in the private sector and (b) subsequently not to continue assisting him through Lettings First having decided to continue with those inquiries were unlawful and void. In addition he sought a declaration that the Council's policy of not continuing with inquiries into an application for accommodation as a homeless person pursuant to Part VII of the 1996 Act if the applicant has been referred to Lettings First to assist in obtaining rented accommodation in the private sector is unlawful and void.
By the time of the hearing matters had developed in such a way as to render otiose the quashing order, the mandatory order and the declarations referable to the Council's alleged decisions in relation to the claimant which he sought. That is because after the issue of the judicial review proceedings the Council resumed inquiries pursuant to section 184 of the 1996 Act with a view to satisfying itself whether he was eligible for assistance and if so whether any duty and if so what duty was owed to him under the Act. Having declared itself so satisfied by a letter dated 1 June 2009 it accepted responsibility for securing him suitable accommodation pursuant to section 193(2) of the Act. Indeed, as appears below, by letter dated 5 February 2009, that is to say even before the issue of judicial review proceedings on 4 March 2009, the Council accepted that it would continue to process the claimant's homelessness application. Further in a letter dated 12 October 2009 the Council notified him that “in those circumstances” he was entitled to take advantage of the rent deposit scheme in securing a qualifying offer of accommodation so that the Council might discharge the duty arising under section 193 by virtue of section 193(7B). In due course the Council submitted that the 12 October 2009 letter was merely spelling out what was implicit in the 1 June 2009 letter, a submission which was challenged by the claimant.
Either way it was common ground by the time of the hearing that despite the claimant's referral by the Council to Lettings First to participate in the rent deposit scheme the Council had continued with its inquiries pursuant to section 184 of the Act and despite continuing those inquiries it also continued to assist him with obtaining rented accommodation in the private sector under the rent deposit scheme. It follows that, as was also common ground, the claimant has no further practical interest in the outcome of his claim for judicial review. The relief sought in the quashing order and the mandatory order has been obtained without the need for an order of the court. For that reason the specific declaration sought that the decisions referable to him were unlawful and void would also serve no useful purpose. The general declaration sought by the claimant that the first aspect of the Council's policy complained of, namely an alleged refusal to continue with homeless inquiries if an applicant has been referred to Lettings Direct to assist in obtaining private rented accommodation, is unlawful and void would not, if granted, be of any benefit to him or have any direct practical effect on him.
In those circumstances the Council submits that the claim for judicial review in so far as it was not academic before the claim was issued has become academic since it was issued and that there are no exceptional reasons why the court should depart from the normal principle that the court does not decide hypothetical questions.
In response Mr Watkinson who appeared on behalf of the claimant invited me to exercise my discretion to entertain the application for a general declaration and to adjudicate upon it. In doing so he relied on two points. The first to which I refer in more detail below was that it is to be inferred that there are many other people in a similar position to that in which the claimant found himself before the Council agreed both to continue its inquiries and to allow him to participate in the rent deposit scheme, so that the court would have to determine the issue raised in this case sooner or later in another case if I declined to do so in this case.
Mr Watkinson's second ground was that the operation of the Council's policy, as he submitted, has the effect that claims for judicial review brought by people in the position of the claimant are always likely to result in offers being made by the Council similar to those made in this case before the claim gets to court with the result that unless the court is prepared to adjudicate on the legality of the Council's policy in a case which no longer has any practical effect on the particular person who has brought a claim there will never be a mechanism for subjecting the alleged illegality of the Council's policy to judicial scrutiny.
There is, as it seems to me, an inconsistency between Mr Watkinson's two grounds. The first proceeds on the premise that the point will have to be decided sooner or later in a case in which the outcome will have a practical effect on the person bringing it so that it might as well be decided now given the costs which have already been incurred. The second proceeds on the opposite premise that it is unlikely that there will ever be a case in which the court has the opportunity to adjudicate the point in circumstances where the adjudication will have a direct effect on or benefit to the person bringing the claim.
In order fully to understand and assess the second ground, it seemed to me necessary for me to understand the facts and background of the dispute and the operation of the Council's policy. I therefore agreed to hear the substantive arguments on the claim for judicial review de bene esse without prejudice to the question whether I should adjudicate upon the issue raised in the declaration.
The Background
The claimant is 61 years old and has a number of health problems. He lives in a flat at 2 Clarence House, Rushcroft Road in the London Borough of Lambeth, where he has lived since February 1983. It is a flat in a mansion block owed by the Council but licensed and later leased to London and Quadrant Housing Trust for use as short life accommodation for largely single homeless people. The Council terminated London and Quadrant's lease in August 2000 and brought procession proceedings against the claimant and some 70 other households as unlawful occupiers. The latter raised various matters in defence and the litigation culminated in a decision of the House of Lords in March 2006 in which those defences were rejected. Thereafter a possession order was obtained against the claimant by the Council in the Central London County Court on 28 April 2006.
In a witness statement dated 4 March 2009 the claimant said that the order has not been enforced by the Council but that he has no rights to the flat and is awaiting an eviction notice from the bailiffs. He said that no one has accepted responsibility to repair the flat or the mansion block since 2000 and that both are in poor repair. His bathroom ceiling has partly fallen in and he felt that the question of finding somewhere else to stay was becoming urgent.
The claimant sought legal advice about his situation. He considered the private sector to be a very insecure source of housing both because of the absence of security of tenure after the first six months of a tenancy and because the lack of certainty that Housing Benefit will pay all the rent, for example if the landlord raises it. He was in receipt of means-tested Pension Credit. He said that he was advised that he could apply as homeless under Part VII of the 1996 Act on the basis that he would be owed the main duty to provide accommodation arising under section 193(2) as a 61 year old with various health problems and as such in priority need who was not intentionally homeless. He did not want...
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