R TRX v Network Homes Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Ellenbogen |
| Judgment Date | 04 February 2022 |
| Neutral Citation | [2022] EWHC 456 (Admin) |
| Docket Number | No. CO/3538/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 456 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
THE HONOURABLE Mrs Justice Ellenbogen DBE
No. CO/3538/2021
Mr J. Burton QC appeared on behalf of the Claimant.
Miss A. Hall appeared on behalf of the Defendant.
(Via Microsoft Teams)
This judgment follows the ‘rolled-up’ hearing of the Claimant's application for judicial review of the Defendant's decision made on 12 July 2021 to refuse her application for a management transfer to alternative accommodation (“the Decision”) under its Allocations and Lettings Policy (“the Policy”). Six grounds of review (as amended) are advanced and were considered over a full day's hearing. Pragmatically, with the exception of ground 6, the Defendant did not contend that any of those grounds was not arguable with a realistic prospect of success and I am satisfied that each of grounds 1 to 5 clearly crosses that threshold. I address below the question of permission for ground 6 and the substantive merit in all grounds following a summary of the salient background facts. Whilst the latter are not in dispute, the relevance and/or significance to the grounds of review of certain matters is in issue and will be considered when addressing the grounds of review as necessary. In resisting each ground of review, the Defendant's overarching contention is that the Decision is not amenable to judicial review because, in making it, the Defendant was not exercising a public law function.
Background facts
Since 2018 the Claimant has been an assured tenant of a two-bedroom property (“the Property”) let to her by the Defendant in which she lives with her three children, respectively aged 11 years, 7 years and 5 months. Her former partner, with whom she was in a relationship for six years, until 2014, is the father of the two older children. They have never lived together. The Claimant had applied to the local authority in 2009 for accommodation as a homeless person and the Property was allocated pursuant to Part VI of the Housing Act 1996. The Defendant is a registered provider of social housing which, pursuant to an agreement with the local authority, makes properties available for allocation by the latter. It describes itself as being “one of the largest registered providers in England, managing homes across 36 local authorities with an active development programme. It owns and manages a range of general needs stock, sheltered schemes, temporary accommodation and private sector units” (see para.1.2 of the Policy).
In February 2020, the Claimant commenced bidding for alternative, three-bedroom, properties, in the same area, under the Defendant's Allocations and Lettings Policy on the basis of over-occupation of the Property. For the purposes of that process, she was granted a Band C rating. On 2 March 2021, she made an oral request of the Defendant for a management transfer, in effect, to increase her priority status from Band C to Band A on the basis that she was at risk of ongoing domestic abuse by her former partner, (“X”). In the course of their telephone conversation, Mr Justin Kyem, Network Neighbourhood Officer, advised the Claimant that the Defendant did not have any empty properties available and that her best option would be to relinquish her tenancy and approach another local authority as a homeless person. The Claimant stated that she had waited many years to obtain an assured tenancy and did not want to relinquish it. Mr Kyem agreed to refer her case to a panel and asked her to provide supporting evidence, including a police report of the abuse which she had suffered. He reiterated his advice, that she seek assistance from a local authority. The Claimant approached a local authority, which advised her to seek a management transfer from the Defendant.
Later that day, the Claimant provided Mr Kyem with a letter dated 12 February 2021 from her independent domestic violence adviser at the Asian Women's Resource Centre (“AWRC”), described as a specialist women's organisation providing support for BME women and children across London, providing a free, confidential, non-judgmental and professional service via the provision of advice and information, outreach and emotional support services and tackling the many inter-related issues surrounding abuse, including immigration, homelessness, welfare benefits and legal issues involving children. That letter set out the history of the Claimant's circumstances. In so doing, it recorded that: (a) the last incident of physical abuse had taken place in 2014, when X had grabbed the Claimant by her clothes and screamed in her face in the presence of their children; (b) in February 2019, whilst their children had been staying with his mother, X had telephoned her, been verbally abusive and accused her of abusing the children, claiming that the police and social services had said that she should not have contact with them. Later inquiries of both agencies by the Claimant had revealed that no report had been made about her; (c) the Claimant had informed AWRC that X had breached a court order, issued on 27 February 2019, which had prohibited harassment and threats towards her by X; (d) X had continued to harass and intimidate the Claimant during recent proceedings relating to child contact; (e) X knew where the Claimant lived; and (f) X had recently changed religion and had been imposing his religious ideas on the children. Recently he had informed the older of their two children that she would not need to attend school the following year because he, they and their paternal grandmother would be in their new home, in Heaven, but that her mother would not be there as she had not converted to his new religion. Amongst the actions said to have been taken by AWRC were (a) the conducting of a thorough risk assessment and safety plan; (b) the referral of the Claimant's case to MARAC “due to the high risk and asked for a MARAC letter in support of her case” (MARAC is the acronym for Multi-Agency Risk Assessment Conference, in which the agencies involved discuss high risk domestic abuse cases and develop a safety plan for the victim and her or his children); (c) referral of the Claimant to family law solicitors; and (d) referral of the children to a safeguarding team “due to risk by the father of the children”. The letter concluded with the following statement:
“We judge [the Claimant's] case to be high risk in terms of both the history of domestic violence and the current risk to [the Claimant] and her children. As [the Claimant] disclosed to us, she and her children are not safe in the current placement as [X] knows the address and has been threatening her many times.
If you require any further information, please do not hesitate to contact me.”
By email dated 2 March 2021, Mr Kyem asked the Claimant to confirm whether she was being supported by social services and the police and asked her to provide documents from both agencies advising about her case. She replied stating that she was being supported by both, giving the latest police reference number, stating that the police had referred her to social services and that she would obtain the report from her social worker. On 3 March 2021, the Claimant sent a further email to Mr Kyem, stating that the social worker was still completing the supporting letter, that the police had said that she could use their referral to social services and asking whether the referral letter could be used. Mr Kyem replied on 5 March 2021, stating, “Please forward any documents you feel will support your case.”
On 18 March 2021, the Claimant obtained an ex parte non-molestation order, under s42 of the Family Law Act 1996, effective until 18 June 2021, or further order in the meantime. As set out in her supporting witness statement, her application had been prompted by X's repeated calls, on February 2021, relating to child contact. It was said that, when their eldest daughter had answered a call, X had “manipulated her into stating that she did not want to see her half-siblings. He was aware that she had become frustrated by his persistent phone calls, so he said, “If you don't ever want to see your brother or sister again, let me know and I won't call you”, to which she agreed. He then said, “You'll never see them again” and “I'm not going to call you”. Thereafter, the Respondent gave my phone number to his friends and family members, who began contacting me regarding the situation.” By that order, X was forbidden to use or threaten violence against the Claimant, and to intimidate, harass or pester her. The orders made included a zonal order prohibiting X from: (a) going to, entering or attempting to enter the Property, or any property where he knew or believed the Claimant to be living; and (b) going within 100 metres of such property, except that he “may go to the...
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The King (on the application of Carly Jayne Willott) v Eastbourne Borough Council
...purposes of sections 19(2)(b) or (c) of the EqA and that it was for her to establish those matters: R (TRX) v Network Homes Limited [2022] EWHC 456 (Admin) [62]. In any event, if the Defendant's construction of rule (d) were correct, the group disadvantage under section 19(2)(b) would not ......